Introduction to trusts

1. Begin with the questions, not the word “trust”

Imagine that a colleague says: “We have a Mauritius trust.” The noun feels complete. It is not. You do not yet know who holds the property, for whom or for what purpose it is held, whether there is a written instrument, how long the arrangement can last, or whether a Financial Services Commission authorisation sits on the trusteeship.

A useful trust-law analysis begins with five questions:

1. Does a trust exist at all? Section 3 is the test: a trustee holds, or is deemed to hold, property of which that person is not the owner in his own right, with a fiduciary obligation to hold, use, deal or dispose of it for a beneficiary, for a purpose, or for both.
2. Is it an express trust? If so, writing and five statutory particulars are conditions of effect (section 6). A constructive trust, a resulting trust, a unit trust, or a trust arising by operation of law is a different animal.
3. Who provided the property? That person is the settlor (section 2). Capacity and the sole-beneficiary prohibition sit in section 8.
4. What property, and where? Any property may be held on trust, with express exceptions: inalienable property, a short leasehold, Mauritius immovable property in a non-charitable purpose trust, and non-citizen interests in Mauritius land without approval (sections 7 and 22).
5. Which date and which text? A 2012 FSC reprint is not the April 2026 consolidation. Act 3 of 2026 overlays trustee disclosure and a register of trusts.

These questions form your working file. The word “trust” is a starting label, not the analysis.

Legal starting points: Trusts Act 2001, sections 2–8. See the source register.

A trust is not a company

A company is a legal person with a certificate. A trust, in this Act, is a relationship plus the property held on it (section 2). The trustee is the person who holds. The beneficiary has an interest, which the Act treats as movable property (section 17). Do not look for a trust “certificate of incorporation”, and do not treat a management company’s licence as proof that a particular trust exists.

The reverse error is as common. A Mauritius company that later settles a trust has not converted itself into a trust. The company remains the company. The trust is a new relationship over identified property.

A conversation is not an instrument

A settlor can describe wishes over lunch. Section 6 is not satisfied by lunch. Subject to the exceptions in section 6(1), an express trust “shall be of no effect unless created by an instrument in writing”. The instrument is then void unless it states the name of the trustee, the intention to create a trust or the trustee’s declaration that the property is held on trust, the object and the beneficiaries or class, the property transferred or held, and the duration.

Trusts Act, section 6. The Code Civil formalities in articles 1325 and 1326 do not make the instrument inadmissible (section 6(3)).

2. A map of the legal framework

Trust law is a connected set of instruments. Open each part of the map to see the role it plays.

The practical reading order is: decide whether a trust exists, inspect the instrument, classify the object (beneficiaries, purpose, or both), then add the FSC trusteeship layer and any tax overlay. Record the date and the facts at every step.

The principal families of law

Family	Principal instruments to locate	How they connect
Existence and writing	Trusts Act ss.3–6	Definition; instrument; five particulars.
Settlor and capacity	s.8	Who may create; sole-beneficiary stop; non-citizen deemed capacity.
Duration and income	ss.9–10	99-year cap; perpetual purpose trusts; 25-year accumulation if Mauritius immovable is in the fund.
Validity and creditors	ss.11–13	Irrevocability default; fraud-on-creditors window; effect of invalidity.
Objects	ss.14–22	Beneficiaries, protective trusts, purpose and charitable trusts, enforcer, Mauritius land.
Trustees and protectors	ss.23–36	Appointment, qualified trustee, protector, custodian/managing split, disclosure.
Duties and powers	Parts V–VI	Utmost good faith; accounts; April 2026 register of trusts.
Other vehicles	Companies Act, Foundations Act, Civil Code	Adjacent. Do not read a trust as if it were a company.
Tax overlay	Income Tax Act s.46; MRA SP24/21	Charge, residence, deemed dividend. Not a Trusts Act question.
Amendments	Act 3 of 2026 s.20	Trustee-to-reporting-person disclosure; trust register; charitable-trust application route.

The working text for this trial is the Laws of Mauritius Version 3 of the Trusts Act, which records the April 2026 commencement of Act 3 of 2026. The FSC PDF consolidated to 22 December 2012 is a historical file. Flag it; do not silently modernise a client opinion from that reprint.

Trusts Act, Version 3; Act 3 of 2026, section 20.

3. When a trust is valid — and when it is not

Section 12 starts from the terms: a trust is valid and enforceable in accordance with its terms, subject to the Act. It then lists the failures. A trust is not valid where it purports to do something contrary to the law of Mauritius; where it has no identifiable or ascertainable beneficiary, unless it is a purpose trust; or where the Court declares duress, fraud, mistake, influence, misrepresentation, breach of fiduciary duty, immorality, uncertainty that makes performance impossible, or want of settlor capacity.

Partial invalidity is not always total failure. If the terms or purposes can be separated, the Court may save the lawful part (section 12(3)–(5)). Property as to which the trust is invalid is held for the settlor, or for the settlor’s heirs if the settlor is dead (section 13).

Irrevocable unless the deed says otherwise

Unless the trust contains an express power of revocation, it is deemed irrevocable by the settlor and the settlor’s legal representative (section 11(1)). That is the default. Do not assume a settlor can “call the property back” because the settlor is also a beneficiary.

Section 11 also contains asset-protection language: a trust is not void merely because it is voluntary, or because the settlor later goes bankrupt — with a two-year window for a creditor attack where the trust was made with intent to defraud persons who were creditors at the time the property was vested. Subsections (2) to (4) do not apply to a trust set up by a Mauritian national or a person domiciled in Mauritius (section 11(6)). Teach the carve-out. Do not advertise Mauritius as a universal shield for a local settlor.

Duration is a validity fact

A trust other than a purpose trust must not exceed 99 years from the date it comes into existence (section 9(1)). A purpose trust, whether charitable or not, may be perpetual (section 9(2)). The instrument must still state a duration (section 6(2)(e)). For a family trust, that stated duration cannot lawfully exceed the cap.

4. One structure, several regimes

Consider a fictional settlement, Lagoon Family Trust. A non-citizen settlor transfers a securities portfolio to a Mauritius management company as qualified trustee, for a class of children, with a protector who may withhold consent to additions of beneficiaries. Later someone asks whether “the trust can buy a house in Moka for the family”.

Separate the layers:

• Constituting the trust: sections 3, 6 and 8. Writing, particulars, capacity, not a sole beneficiary.
• Holding the portfolio: section 7. Movable property may be added. The trustee takes no better title than the settlor had.
• Buying the house: section 22 and the Non-Citizens (Property Restriction) Act. A non-citizen beneficial interest in Mauritius immovable property is void without Prime Ministerial approval. A non-charitable purpose trust cannot take that land at all (section 19(3)).
• Trusteeship status: section 28. The management company is the qualified trustee. That is not a Global Business Licence and not a tax residence conclusion.
• Tax: Income Tax Act section 46. Send those questions to the Mauritius Tax course.

The lesson is to connect regimes without merging them. A reliable analysis records the relationship, the people, the property and the licence separately.

Trusts Act Parts I–IV; Non-Citizens (Property Restriction) Act, read with section 22; Financial Services Act overlay for the qualified trustee.

5. Use the right date — and keep the file

This edition freezes its research at 20 September 2026. The Trusts Act itself commenced on 1 December 2001. Later overlays still have their own commencement.

Act 3 of 2026, in force from 18 April 2026, inserts section 33(1A): a trustee shall, on request, give a reporting person information on the beneficial ownership of the trust and of any asset held or managed under that business relationship. It also replaces the accounts rule in section 38(3) and adds section 38(3A): a trustee must keep an accurate, updated register of every trust under its trusteeship — including foreign trusts — and notify the Commission within five working days. Those duties are in force at this cut-off. They are not a reason to treat a 2012 FSC PDF as current.

Act 3 of 2026, section 20; Trusts Act sections 33 and 38 as annotated in Version 3. MRA SP24/21 remains tax guidance, not a substitute for the Trusts Act.

A practical evidence pack

For a Mauritius express trust, retain the instrument, any letter of wishes (non-binding: section 27), evidence of the transfer, the qualified trustee’s authorisation, protector and enforcer appointments and acceptances, and — after April 2026 — the trustee’s register particulars. Before writing “the trust can do this”, be able to finish this sentence: “For this relationship, over this property, on these facts, in this period, this provision produces this result.”

Next: name the kind of trust — beneficiaries, purpose, charitable, protective — and test five everyday validity problems.