In 2021, the Government of the British Virgin Islands (BVI) plans to make a significant number of changes to its trust and estate law in line with the recommendations made by the BVI Trust Law Review Committee.
The Trustees (Amendment) Act 2021 introduces a number of important new provisions to the BVI Trustees Act of 1961, including:
- New “consent” rules that would allow the High Court to change the terms of trust, including without the consent of the adult beneficiaries, if the High Court considers the change to be appropriate in the circumstances;
- statutory rules allowing the High Court to overrule the misuse of fiduciary powers while retaining what has become known as the Re Hastings Bass Rule in BVI law;
Initially, this principle provided for the possibility (but not the obligation) of the court to intervene in the actions of the trustee, subject to certain conditions. The second part of this principle was later deliberately redefined as affirmative by Judge Warner in Mettoy
Pension Trustees Ltd v Evans and others ”[1990] 1 WLR 1587 (hereinafter“ Mettoy ”), 1621A-H, as follows:“ If the trustee acts in accordance with the discretion granted to him by the terms of the trust, the court will interfere with his action if it is obvious that he would not have acted as he did if he had managed to take into account the considerations that he had to take into account. " In other words, if the actions of the trustee caused losses to the company that he controls, then the court will interfere in his actions if it considers that the trustee has not shown sufficient discretion:
- The "firewall" that protects BVI trusts from attacks based on foreign laws will be significantly expanded, including claims brought under forced inheritance regimes or arising out of personal relationships with "a person internal to the trust";
- updated and comprehensive provisions regarding the reservation or authorization of the founder or other parties;
- and a new custodial account.
Another major change is being made to the 2021 Probate Act, which expands the High Court's powers over foreign probate representations. Until now, it has only been possible to gain insight into a will from a limited number of jurisdictions, including
Great Britain and some overseas British territories. The new law contains an exhaustive list of more than 60 jurisdictions that the British Virgin Islands recognizes for succession purposes, including all Commonwealth countries, Hong Kong and the United States.
The BVI Property Regulation Act 2021 and the Small Estate Management (Amendment) Act 2021 are also subject to other minor changes. The first cancels the rule that prohibits the appointment of a relative born out of wedlock as a trustee.
Statutory rules are also awaiting adoption to allow the High Court to remedy the errors of the trustees. This will preserve the Hastings-Bass Rule in BVI law, which was relaxed somewhat in England, Wales and other jurisdictions by the 2013 UK Supreme Court decision in Pitt v. Holt.
