Conflict of Laws Rules for Trusts Act

Conflict of Laws Rules for Trusts Act 65 1996 781755088/96065/tlc96065_f E3tlc96065 Definitions and interpretation 1 1 In this Act: law means the rules of law in force in a province of Canada other than the rules of conflict of laws; settlor means a person who creates a trust; trust means the legal relationship that exists when a assets are under the control of a trustee, b the assets constitute a separate fund and are not a part of the estate of the trustee, c title to the assets stands in the name of the trustee or in the name of another person on behalf of the trustee, and d the trustee has the power and the duty, in respect of which the trustee is accountable, to hold, manage, employ, dispose of or deliver the assets in accordance with the terms of the legal relationship and the special duties imposed by law; trustee means a person who has control of assets for the benefit of a beneficiary or for a specified purpose; validity of a trust means essential validity of a trust. 2 For the purposes of this Act a the reservation by a settlor of rights and powers, and the fact that a trustee may have rights as a beneficiary, are not necessarily inconsistent with the existence of a trust, and b the fact that a settlor is a trustee or a beneficiary, or both, of a trust created by the settlor is not inconsistent with the existence of a trust unless the settlor is both the sole trustee and the sole beneficiary of a trust created by the settlor. Application of Act 2 1 This Act applies if a the law governing the trust as determined under this Act is that of a province of Canada, and b the International Trusts Act does not apply to the trust. 2 This Act applies to trusts arising before May 14, 1993 as well as to trusts arising after that date, but is not to be construed as affecting the law to be applied in relation to anything done or omitted under a trust before that date. 3 This Act does not apply to preliminary issues relating to the validity of instruments or acts by which trusts are created. 4 This Act does not apply to the extent that the law governing the trust as determined under this Act does not provide for the type of trust involved. Law governing trust 3 1 A trust is governed by the law chosen by the settlor, which choice may be express or implied. 2 If the law chosen by the settlor to govern the trust does not provide for the type of trust involved, the choice is not effective and the trust is governed by the law with which it is most closely connected. 3 If the settlor has not chosen the law to govern the trust, the trust is governed by the law with which it is most closely connected. 4 In ascertaining the law with which a trust is most closely connected, reference must be made in particular to a the place of administration of the trust expressly or impliedly chosen by the settlor, or b failing the choice referred to in paragraph (a), the place of residence or business of the trustee, or, if there are 2 or more trustees, the place where the administration of the trust is principally carried out. Law governing severable aspects of trust 4 1 Severable aspects of a trust, including the validity of a trust, the construction of a trust, the administration of a trust and different assets subject to a trust, may be governed by different laws determined in accordance with section 3. 2 The law governing the validity of a trust determines whether the question to be resolved is one of validity, construction or administration. Replacement of governing law 5 The law governing the validity of a trust determines whether that law or the law governing the administration or any other severable aspect of a trust may be replaced by another law. Residence of trust 6 The residence of a trust is the place where the administration of the trust is carried out or is principally carried out. Recognition and enforcement of trusts 7 1 Nothing in this Act is to be construed as requiring that recognition or effect be given to a trust or a severable aspect of a trust if the significant elements of the trust or aspect, other than the settlor's choice of law, are most closely connected with a jurisdiction the law of which does not provide for the type of trust or aspect involved. 2 Nothing in this Act is to be construed as requiring that recognition or effect be given to a trust or a severable aspect of a trust if the giving of recognition or effect would be contrary to the public policy of British Columbia or would contravene a fundamental principle of the law of a jurisdiction having a stronger policy interest in the matter than has any other jurisdiction. 3 Nothing in this Act is to be construed as requiring that recognition or effect be given to a trust that exists only because of a judicial declaration in another jurisdiction, or to a severable aspect of such a trust, if the Supreme Court is satisfied that there is a substantial reason for refusing to give recognition or effect to the trust or aspect. 4 Nothing in this Act is to be construed as requiring that recognition or effect be given to a trust imposed by statute in another jurisdiction, or to a severable aspect of such a trust, if the Supreme Court is satisfied that there is substantial reason for refusing to give recognition or effect to the trust or aspect. Conflict with Wills, Estates and Succession Act 8 If there is a conflict between a provision of this Act and a provision of the Wills, Estates and Succession Act with respect to the law governing a trust created by a will or a severable aspect of such a trust, this Act prevails.