Trustee (Amendment) Act 2021
Probate (Resealing) Act 2021
Administration of Small Estates (Amendment) Act 2021
Property (Miscellaneous Provisions) (Amendment) Act 2021
New trust legislation came into force on 9 July 2021. The various pieces of legislation, which are outlined below, have been drafted to bring the British Virgin Islands into line with other jurisdictions and to extend powers that already exist in the British Virgin Islands.
The statutory power of a BVI court to amend a trust is being widened and there will no longer be a requirement for the consent of adult beneficiaries to such an amendment. However, this provision is intended to apply only to trusts established after it came into force and where the trust in question has provisions in it to opt into the no consent (regarding adult beneficiaries) regime.
In addition, a BVI court now has the power to order that a trust instrument be amended in relation to a mistake in the drafting, replacing previous common law.
The BVI courts now have primacy in determining disputes regarding the establishment and validity of a BVI law trust. The scope of the issues which are to be exclusively determined by the BVI courts has been expanded.
The principle that a settlor or named third party can reserve to themselves powers to make decisions regarding the trust and effectively override decisions of the trustee has been widened.
There has been attempted clarification in respect of the starting point of the five-year document retention period for trustees and trust documents.
Shares in a number of BVI companies are held by individuals who may be domiciled outside of the British Virgin Islands. If they died without a BVI will, their will in relation to the shares in the BVI company previously needed a grant of probate in the BVI.
This had been achieved in the past by resealing the grant of probate issued in that individual's home jurisdiction. However, the range of jurisdictions where this was an option was limited, essentially only the United Kingdom. This list of jurisdictions from which a grant of probate can be resealed in the British Virgin Islands has now been significantly extended by the Probate Resealing Act 2021. It includes all Commonwealth jurisdictions as well as a significant number of Asian or Asian-linked jurisdictions, notably Hong Kong and Singapore.
Administration of Small Estates (Amendment) Act 2021
The Administration of Small Estates Act (Cap 4) was enacted in July 1944 and provides a simplified procedure for the administration of small estates whose value does not exceed US$240. The legislation needed updating and the Administration of Small Estates (Amendment) Act 2021 has increased the value of small estates from US$240 to US$25,000. In addition, it will now apply only to persons who die while domiciled in the British Virgin Islands.
Property (Miscellaneous Provisions) (Amendment) Act 2021
The Property (Miscellaneous Provisions) (Amendment) Act 2021 aims to deal with two related matters. First, it abolishes any rule of law or policy that provides that a disposition in favour of an illegitimate child who is not alive when the disposition takes effect is void. The Act then goes on to give retrospective effect to this provision.
For further information on this topic please contact Jennifer Fox or Anthony Partridge at Ogier's Grand Cayman office by telephone (+1 345 949 9876) or email ([email protected] or [email protected]). Alternatively, contact Grace Gao or Marcus Leese at Ogier's Hong Kong office by telephone (+852 3656 6000) or email ([email protected] or [email protected]). The Ogier website can be accessed at www.ogier.com.