Trusts and Foundations

Mauritius Trusts are governed by The Trusts Act 2001. A trust formed under this Act has the following features:

  • It can be formed by a resident or non resident of the Mauritius.
  • There is no requirement to register the trust with any registrar.
  • It is a very flexible vehicle and can be formed as a life interest trust, a discretionary trust, a purpose trust, a charitable trust, a protective trust or an asset protection trust.
  • It can have a Protector and a purpose trust must have an Enforcer.
  • It can have a managing trustee in Mauritius and a custodian trustee in another jurisdiction.
  • The forced heirship rules of other states will not be enforced by Courts in Mauritius.

Establishment of a Trust

A trust is established by the disposition of property either between living persons or by the terms of a will or by the declaration of the Trustee that he is holding the property on trust. To be valid it must be evidenced by a deed which states:

  • The name of the trustee
  • The intention of the settlor to create a trust or a declaration by the trustee that he holds the property on trust
  • The object of the trust or the beneficiaries of the trust
  • The property transferred or held on trust
  • The duration of the trust

Except with the approval of the Prime Minister, Trust property may not include immovable property in Mauritius in the case where the beneficial interest is held by a non-citizen.

Confidentiality

There is no register of trusts in Mauritius nor is there any need for any disclosure of beneficial owner to any authority. A trustee has a requirement under the Act to keep confidential all information concerning the trust. Under exceptional circumstances, a trustee may be required to give confidential information to authorised body or authorised persons under anti-money laundering, prevention of terrorism or prevention of corruption legislation or under the Financial Services Act 2007.

Asset Protection Features

The legislation includes the following features:

1. In the absence of intent to defraud, a trust shall not be void or voidable as a consequence of a subsequent bankruptcy of the settlor nor in consequence of any action taken against the settlor by his creditors.
2. Where the creditor has been proven beyond reasonable doubt that the trust was made with the intent to defraud creditors of the settlor, the court may declare a trust to be void or voidable.
3. No action may be brought in 2 above more than two years from the transfer of assets into the trust.

Purpose Trusts

A Mauritius trust may be created for a purpose, notwithstanding the absence of any beneficiary. The purpose must be specific, reasonable and capable of fulfillment and not immoral, unlawful or contrary to public policy. A purpose trust must have an enforcer who is capable of enforcing the terms of the trust. The instrument creating the trust must provide for the disposition of the assets upon its termination.

Taxation

Trusts with non resident settlors and beneficiaries are exempt from tax if election is made or, if no election is made, at an effective rate of 3% of their net income after deductions for expenses unless an election is made to be deemed non-resident and be exempt from tax. Taxpaying trusts enjoy the benefits of Mauritius’s many favourable tax treaties. Trusts for residents are taxable at 15% on their net income after deductions for expenses.

Migration of Trusts

Trusts established in other jurisdictions can be migrated to Mauritius for tax purposes simply by ensuring that the majority of trustees are resident in Mauritius and that the trust is administered in Mauritius. Depending on the terms of the original trust the proper law of the trust can be changed to that of Mauritius by a simple declaration by the trustees in the deed of retirement and appointment.

Trustee

At least one trustee of a Mauritius Trust must be a qualified Trustee. A qualified Trustee is one licensed by the FSC to carry out trust business. Subject to the foregoing a settlor may be one of the trustees. The number of trustees may not exceed four.

Settlor

Any person who has the legal capacity to contract may create a trust. A settlor may be a trustee , beneficiary , protector or enforcer of the trust but may not be the sole beneficiary.

Beneficiaries

The beneficiaries of a trust must be identifiable by name or ascertainable by reference to a class of persons or by relationship to another person. The terms of the trust may provide for the addition of other beneficiaries.

Duration of the Trust

The trust period cannot exceed more than 99 years except in the case of a charitable trust where it may be of perpetual duration. In the case of a non-charitable purpose, the duration may not exceed 25 years.

Charitable Trusts

A specific form of purpose trust is the charitable trust. To be a charitable trust the trust must have as its exclusive object one or more of the following purposes:

  • The relief of poverty
  • The advancement of education
  • The advancement of religion
  • The protection of the environment
  • The advancement of human rights and fundamental freedoms
  • Any other purpose beneficial to the public in general

Provided the trust objects are one of the above it will still be charitable if:

  • it is a discretionary trust
  • the terms may be modified or terminated
  • the trustees have the power to defer the distribution of benefits
  • the charitable objects are outside Mauritius

Forced Heirship provisions

The Mauritian Civil Code has been altered to ensure that the forced heirship provisions only relate to trusts settled by Mauritius subjects or relating to property situated in Mauritius and subject to Mauritius national laws.

Foundation

The Foundation is an alternative vehicle to Trust and is convenient for succession planning and private wealth management. It is the dedication of property to an entity to be used for the benefit of people for a specific purpose.

The Mauritius Foundations Act 2012 offers one of the most versatile and dynamic Foundations available from any jurisdiction and promotes Mauritius as a platform for wealth management services, succession and estate planning.

What is a foundation?

A Foundation is broadly defined as a legal entity without members and with its own organization, the ownership of which is to achieve a certain specific purpose by means of endowment made. It comes into existence when ownership of assets is transferred to the foundation by the Founder. A Foundation enjoys legal personality which fulfills similar functions as those of a trust, but with the administrative flexibility of a company.

A Foundation could also be defined as a legally and economically independent special-purpose fund which is formed as a legal entity through the unilateral declaration of the founder. The founder allocates the specifically designated foundation assets, stipulates the purpose of the foundation, entirely non-self-serving and specifically designated, and also stipulates the beneficiaries.

The Mauritius Foundation provides a legitimate means to protect one’s assets against personal liability, high taxes, exchange controls or risk of confiscation. It could be the preferred vehicle for those from civil law jurisdictions and why not common law countries.

Why a Mauritius Foundation?

A Mauritius Foundation gives the Founder the requisite protection and comfort for a long term wealth management. Family assets are preserved over generations with most tax efficiency, succession laws, forced heirship rules, probate and other hurdles are avoided.

A Foundation may upon application to the Financial Services Commission of Mauritius, hold a global business licence and may elect to be tax resident in Mauritius to benefit from the wide network of Double Taxation Agreements (“DTAs”) in force in Mauritius. Otherwise, if a Foundation is for a charitable purpose or is declared non-resident, it is exempted from income tax in Mauritius.

Where are Foundations used?

  • Private relationship: For example, the founder’s wishes are not publicly registered;
  • Accumulation and preservation of wealth;
  • Succession and estate planning;
  • Separation of voting and economic benefits;
  • Employee share option schemes;
  • Pension funds;
  • Charitable purposes;
  • International tax planning.

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