The power and duties of Maltese trustee

Abstract

The aim of this thesis is to explore the powers and duties a Maltese trustee within the new ambit of the Trusts and Tustees Act (TTA). The first part of this thesis will define what a trust is and will also examine how a trust may be created. There are trust like devices in our civil code and I will also explore them with particular interest to mandate, tutorship usufruct inter alia. The core of the thesis shall deal with the duties and powers of the trustee. The trust instrument may qualify or restrict the trustees' duties as much as the settlor wishes so long as his wishes are not uncertain, illegal or contrary to public policy or in any way effectively negate the very existence of a trust relationship. I will examine the fiduciary obligations set out in our civil code and determine whether one need to refer to such obligations, since most of these obligations are entrenched in the TTA. I will then examine the duties imposed on a trustee, such as the duty to keep the trust property segregated, the duty of the trustee to invest the property, the duty of a trustee to act in an impartial manner, to provide accounts and information, the duty not to profit, the duty of care, the duty to act personally, duties regarding co-trustees. The next part of the thesis shall deal with the powers of a trustee. Such powers may either be administrative powers or dispositive powers and l will examine the powers a Maltese trustee has in the light of the new law. If a trustee does not abide by the powers or duties granted to him, he would be acting in a breach of trust, and the next part of the thesis deals with such breach of trust and the remedies available to the beneficiary interalia to trace back the trust property as they are the equitable owners of such property. The last part of the thesis deals with the new regulations imposed by the Malta Financial Services Authority which have been introduced with the new law in order to maintain an amount of control over the trustees and to ensure that such trustees abide by their duties.