People of the trust

1. Name the office, then the human being

A trust file that says “the client” has already failed. The Act names offices. A natural person or a body corporate may hold more than one of them — with express stops.

Open the map, then keep a column for each office on the actual deed.

The practical discipline is the same as in the companies course: one human being can be settlor and protector; that does not merge the offices. Write each function down. Then check the statutory prohibitions.

Trusts Act, sections 2, 8, 21 and 23–24. See the source register.

2. The settlor provides. The settlor does not own.

The settlor is the person who provides trust property or makes a testamentary disposition on trust or to a trust (section 2). Any person with legal capacity to contract may create a trust (section 8(1)).

Section 8(2) is the overlap rule and the hard stop in one sentence. A settlor may also be a trustee, a beneficiary, a protector or an enforcer, but shall not be the sole beneficiary of a trust of which that person is the settlor.

A non-citizen settlor who is of full age and sound mind under Mauritius law, the law of domicile or nationality, or the proper law of the transfer, is deemed to have had capacity (section 8(3)). A transfer by a non-citizen is not set aside merely because the law of domicile would have preserved the property for heirs (section 8(4)). That protection is not a Mauritius-domiciliary product: remember section 11(6).

Once the property is validly vested, the settlor’s remaining power depends on the deed. There is no implied power of revocation (section 11(1)). A letter of wishes is not a reserved power (section 27). If the deed confers a power of revocation (section 48), that is a deed question, not a default.

3. The trustee holds — on terms, and not as owner

Appointment is limited to a person of full age with capacity to contract, or a body corporate permitted by its statute to act (section 23(1)). A trustee must not hold a beneficial interest under the same trust if that person is the sole trustee or the sole beneficiary (section 23(2)).

Numbers. There shall not be more than four trustees, of whom at least one shall at any time be a qualified trustee (section 28(1)). The trust does not die merely because the count drops or the qualified trustee has gone; but until the gap is filled, existing trustees act only to preserve the property (section 28(6)). Any person having an interest may apply to the Judge in Chambers for a qualified trustee to be appointed (section 28(4)).

Acceptance. A person appointed may refuse, but knowing intermeddling is acceptance (section 30). There is a three-month window to disclaim in writing.

Resignation. A trustee other than a sole trustee may resign by written notice to co-trustees (section 31). On exit, the person must vest the property in the continuing trustees and may, if the deed permits, require reasonable security for liabilities before surrendering assets.

Duties that actually bite

Section 37 requires utmost good faith, due diligence, care and prudence, and skill. The trustee administers only in the interest of the beneficiaries or in fulfilment of the purpose, and must not use the property for a private profit except as the Act, the Court or the terms allow.

Section 38 requires the trustee to preserve and, so far as is reasonable, enhance the value of the property, and to keep up-to-date accurate accounts and records of the trusteeship for at least five years after the transactions they record. Act 3 of 2026, from 18 April 2026, adds section 38(3A): a register of all trusts under that trusteeship, including foreign trusts, with basic identifying facts, the deed and amendments, names and addresses of beneficiaries, objects of a power, beneficial owners, trustees, anyone exercising ultimate effective control, settlors, protectors, enforcers, the object and proper law, the place of administration, and service providers. The qualified trustee notifies the Commission of that information and of changes within five working days.

Section 33 still protects a good deal of internal deliberation from general disclosure, with Court and investigatory-authority gates. The same 2026 Act adds section 33(1A): on request, the trustee must give a reporting person beneficial-ownership information on the trust and on assets held or managed under that business relationship. Confidentiality is not a reason to refuse a statutory AML request.

Trusts Act, sections 23, 28, 30–31, 33, 37 and 38; Act 3 of 2026, section 20. Read the 2026 overlay.

Custodian and managing trustees

The deed may split the office. A custodian trustee — a firm, partnership or body corporate — is vested with the property; management and discretions remain with the managing trustee (sections 25–26). The custodian follows directions unless they appear unlawful, contrary to the terms, contrary to sound commercial practice, or otherwise objectionable. Do not treat the split as a way to avoid a qualified trustee. Section 28 still applies to the trust.

4. Protector, enforcer, beneficiary — three different kinds of power

Protector. Optional. The function is to advise the trustee, with such powers as are conferred, including a power to make the trustee’s discretions subject to prior consent (section 24(1)). Unless the deed provides otherwise, the protector may remove and appoint trustees, determine the proper law, change the forum of administration, and withhold consent to specified actions (section 24(3)). Exercising those powers does not, by itself, make the protector a trustee, and the protector is not liable to beneficiaries or trustees for a bona fide exercise unless the deed says otherwise (section 24(4)). The protector may also be settlor, trustee or beneficiary (section 24(5)). Several protectors act by majority, with a right to record a dissent.

A protector who starts giving day-to-day instructions may still create a facts problem for tax or for “person exercising ultimate effective control” under the 2026 beneficial-owner language. The Act’s “not deemed a trustee” sentence does not answer those other statutes.

Enforcer. Only where there is a purpose trust. Duty: enforce the trust in accordance with its terms and purposes (section 21(1)). Prohibition: never trustee and enforcer of the same trust (section 21(2)). Resignation is by notice to the trustee and does not release prior liability. A Mauritian-national settlor’s purpose trust also needs Commission approval of the appointment.

Beneficiary. Holds an interest, not the underlying asset. Beneficiaries who are all in existence, ascertained, of full age and under no incapacity may, by unanimous notice, require the trustee to terminate the trust and distribute as they direct (section 57). That power sits “notwithstanding anything in the terms of the trust”. A class that still has unborn members cannot use it. On ordinary termination, the trustee distributes within a reasonable time and may retain a provision for liabilities (section 56).

5. Build a defensible trust profile

Before writing that “the trust can do this”, complete a one-page profile:

1. Relationship. Express, constructive, resulting, or foreign? Proper law?
2. Instrument. Writing? Five particulars? Duration within section 9?
3. Object. Beneficiaries, purpose, charitable exclusive purpose, or a combination?
4. People. Settlor; each trustee (mark the qualified trustee); beneficiaries or class; protector if any; enforcer if any. Note overlaps and the statutory stops.
5. Property. Movable? Mauritius immovable? Non-citizen interest? Prime Ministerial approval?
6. Duties overlay. Accounts; five-year records; section 38(3A) register; section 33(1A) reporting-person requests.
7. Neighbouring regimes. Income Tax Act section 46; any FSC licence of a person in the structure; Non-Citizens (Property Restriction) Act. Do not merge the columns.

A letter of wishes can sit in the file. It cannot replace the deed, appoint an enforcer, or revoke an irrevocable trust.

This trial stops short of variation applications, Court directions under Part XI, and a full tracing problem. Those remain future editorial work. The method does not: name the office, name the provision, name the date.

Trusts Act Parts IV–VI and IX; Income Tax Act section 46 and MRA SP24/21 for the tax column only.