Trusts : an emerging aspect in notarial law

Abstract

When Trust law was introduced in our law in 2004, various laws had to he amended so that this Common Law concept would not exist in conflict with our Civil Law system. In fact most laws relating to the notarial profession have heen changed or else new provisions introduced to establish the procedures a notary should follow when setting up a trust or whenever the notary is entrusted with the publication of a trust deed. Throughout my research many questions remained unanswered since the law is relatively new in Malta and only by time and practice will certain issues be resolved. I started my thesis by depicting the way the notarial profession started with a particular focus in Malta and also the way Trust Law emerged and how it was introduced under our law. l then sought to find the way both could be combined, which is the aim of my thesis. The first chapter examines trusts and testamentary law. I went through the requirements of wills and then discussed the way testamentary trusts can be utilised, in particular the type of trusts suitable for wills. I also discussed the offices of testamentary trustee and testamentary executor. The second chapter deals with the way the notary can set up a trust and under which circumstances it would be ideal to set up one. The law still stops short at discussing some practical issues in lhe areas of drafting and matrimonial regimes. In the third chapter I also discussed declarations that are usually made by persons acquiring immovable property in their own name and whether these also apply to trustees. I also referred to mandatory provisions in the third chapter. The Trusts and Trustees Act dedicates a few articles to notaries that are worth examining in conjunction with other laws that were amended to avoid inconsistencies. Finally I dedicated the fifth chapter to fiscal matters, since the transfer of certain assets such as immovable property and securities still incur tax and are not exempt from it because of the institution of trust.