Brief summary of several of the powers and obligations of a Trustee
On April 1, 2014, new legislation entered into force pursuant to which it is now possible to set up a trust, similar to the trust in Anglo-Saxon common law jurisdictions, in St. Maarten (a civil law jurisdiction). Similar legislation entered into force in Curaçao on January 1, 2012.
The St. Maarten Trust could serve as an important tool for various financial and commercial transactions: as a security agent, for tax and estate planning, as a pension or investment fund, asset protection, voting structures, promoting cultural, academic and charitable objectives, etcetera.
Here follows a brief summary of several of the powers and obligations of a Trustee.
The Trustee is entitled and obliged to administer the trust assets with regard to which he is obliged to render account (Section 3:127 subsection 2 under c St. Maarten Civil Code [‘CC ’]).
The Trustee is obliged to administer the trust assets according to the law and the provisions of the trust deed and to exercise his powers in accordance with the nature of the trust assets and with the due care arising from his own position of trust (Section 3:135 subsection 1 CC).
The Trustee is obliged to insure the trust assets against perils against which it is common to take out insurance (Section 3:135 subsection 2 CC).
Unless otherwise provided for in the trust deed, the Trustee must have the trust relationship recorded in the registers as meant in Section 3:16 et seq. CC (registration of registered property), the Trade Register and the shareholders’ register (Section 3:136 subsection 2 CC).
Unless otherwise provided for in the trust deed or if it cannot be required of the Trustee according to the generally prevailing opinion, or when it is impossible or prohibited according to applicable law, the Trustee must make it known to his other party that he is acting in his capacity as Trustee (Section 3:136 subsection 3 CC).
The Trustee is obliged to keep the trust assets separate from any other trust assets and from any of his assets not incorporated in a trust (Section 3:137 subsection 1 CC).
The Trustee is obliged to keep accounts of all trust assets (Section 3:137 subsection 2 CC).
Unless otherwise provided for in the trust deed, the Trustee will be obliged to render account of his administration to the beneficiary every year as well as at the termination of the trust. In this connection legal acts are explicitly mentioned whereby a Trustee or protector had any conflicting personal interest (Section 3:137 subsection 3 CC).
When there is any conflicting interest, the Trustee can only enter into legal acts with regard to the trust assets with the cooperation of all the other Trustees and with the consent of all protectors. In the absence of any protector’s consent the consent of the court in first instance will be required. This provision can be deviated from in the trust deed (Section 3:139 subsection 3 CC).
I have only mentioned here the obligations in Book 3 CC and point out that the St. Maarten Ordinance on supervision of trust offices is also applicable to trust offices offering services as a Trustee.
Attorney (Lawyer) / Partner
(15 May 2014)