DMSL

A trust is the most popular and successful method of sheltering and protecting assets and assuring succession to chosen beneficiaries. A well-structured trust can be very effective allowing for protection against creditors’ claim, exchange control, risk planning, commercial risk or expropriation.

According to the Trust Act 2001, a Trust exists when a person (the ‘settlor’) gives to a trustee the power to hold property on his behalf for a specified list of class of persons (‘the beneficiaries’), which has been designated by the Settlor. A trust will include the Settlor, the beneficiaries, the trustee and the protector (optional).

The trustee has a fiduciary obligation to hold, use, deal or dispose of the property for the benefit of the beneficiaries. Anti-money laundering regulations require trustees to know the identities of the settlor and the ultimate beneficiaries of a trust, but disclosure to third parties is only required in very particular circumstances and must always be accompanied by a court order.

The Trust assets do not form part of the Trustee’s own estate and, save for its entitlement to fees, it may not acquire any benefit from the assets. The Trust assets also do not form part of the Settlor’s estate and, on the death of the Settlor, therefore, long, complicated and costly probate and winding up procedures are avoided.

A Trust is established by the disposition of property either between living persons or by the terms of a will (the ‘trust deed’) or by 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 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.

Based on the Mauritius Foundation Act 2012, a Mauritius Foundation is an alternative vehicle available in Mauritius that allows for the conduct of charitable as well as non-charitable activities such as estate planning  and commercial activities . It is generally used for wealth management, succession planning, charitable activities or for commercial purposes alongside trusts, limited partnerships and corporate structures.

Foundations are appealing to clients from civil law countries as the Mauritian Foundation is liable to income tax in Mauritius on its chargeable income at the rate of 15% but may be subject to an effective income tax rate of 3% whey they hold a Global Business Licence. It is mandatory for Foundations to have a charter that is signed by all the founders.

In addition, all foundations are required to have a secretary who may either be a Management Company or a person resident in Mauritius that is authorised by the FSC. Where a founder is non-resident in Mauritius and all the beneficiaries appointed under the terms of a charter or a will are, throughout an income year, non-resident in Mauritius, a Foundation will be exempt from income tax in respect of that year. A Foundation whose exclusive purposes or objects are of a charitable nature will also be exempt from tax in Mauritius.