Purpose Trust - Statutory Exceptions

Statutory Exceptions

A number of offshore jurisdictions have enacted statutes which expressly validate non-charitable purpose trusts outside of the small group of specific exceptions recognised at common law. Some of the jurisdictions which have done so include the Bahamas, Bermuda, the British Virgin Islands and the Cayman Islands.

Characteristically, in those jurisdictions a non-charitable purpose trust requires a written trust instrument and the trust instrument must specify a protector or enforcer who will have locus standi to enforce the terms of the trust against the trustees. This role is created to address the concerns expressed by the courts as to how the courts would have power to control the trustees.

However, no real steps have been taken in any of those jurisdictions to address the fundamental conceptual issues of where the beneficial title to the trust assets should be regarded as residing whilst they form part of the trust fund. Arguably, if no other person is regarded as having a beneficial claim to the assets, they would be regarded as being owned solely by the trustees, which could have disastrous tax implications for the trustees.