Section 59
of International Trusts Order, 2000
Section 59
(1)
Where property whether real or personal, movable or immovable, is held on an ordinary trust arising under any will, settlement or other disposition, the Court may if it thinks fit by order approve on behalf of –
(a)
any person having directly or indirectly an interest whether vested or contingent under the trusts who by reason of being a minor or other incapacity is incapable of assenting;
(b)
any person (whether ascertained or not) who may become entitled directly or indirectly to an interest under the trusts (whether discretionary or otherwise) as being at a future date or on the happening of a future event a person of any specified description or a member of any specified class of persons, so however that this paragraph shall not include any person of full age and capacity who would be of that description or a member of that class, as the case may be, if the said date had fallen or the said event had happened at the date of the application to the Court;
35
BLUV as at 16th December 2010
(c)
any unborn person; or
(d)
any person in respect of any discretionary interest of his under protective trusts where the interest of the principal beneficiary has not failed or determined, any arrangement (by whomsoever proposed and whether or not there is any other person beneficially interested who is capable of assenting thereto) varying or revoking all or any of the trusts or enlarging the powers of the trustees of managing or administering any of the property subject to the trusts:
Provided that except by virtue or paragraph (d) the Court shall not approve an arrangement under this subsection on behalf of any person unless either –
(i)
carrying it out would benefit that person; or
(ii)
carrying it out would not prejudice that person and the Court considers that its approval is appropriate in view of benefits or potential benefits to other persons.
(2)
In subsection (1), “protective trusts” means the trusts specified in sections 39(1)(a) and (b) or any like trusts; “the principal beneficiary” has the same meaning as in section 40(1); and “discretionary interest” means an interest arising under the trusts specified in section 39(1)(a) or any like trusts.
(3)
Where capital or income of trust property is or may be applicable for a charitable purpose or an authorised purpose the Court may if it thinks fit by order sanction in respect of that purpose the carrying out of any arrangement (by whomsoever proposed, including any such person as is described in section 72(2), and whether or not there is any person beneficially interested capable of assenting thereto) varying or revoking all or any of the trusts or enlarging the powers of the trustees of managing or administering any of the property subject to the trusts:
Provided that the Court shall not sanction the carrying out of any arrangement under this subsection if it would be detrimental to the purpose in respect of which such sanction is sought.
36
BLUV as at 16th December 2010
(4)
In subsection (3), “charitable purpose” means an exclusively charitable purpose but does not include an independent charitable company, association or other separate entity or organisation and “an authorised purpose” means a purpose of an authorised purpose trust.
(5)
Neither section 93(l)(b) nor section 94 shall apply to an application under this section 59, but in deciding whether to approve an application under this section the Court may have regard to any material wishes or intentions of the settlor as established by evidence adduced on the application or ascertained (directly or by inference) from the trust instrument.
(6)
Nothing in the foregoing provisions of this section shall apply to trusts affecting property settled by any written law.
Power to authorise dealings with trust property.