MAURITIUS Law and Practice Contributed by: Johanne Hague, Ashwin Mudhoo, Medina Torabally and Yushrah Bayjou, CMS Prism – in association with CMS
compensation in kind, but rather economic compen - sation in Mauritius.
diligence and skill that a reasonably prudent person would exercise in comparable circumstances. 6.2 Fiduciary Liabilities Foundations The Foundations Act 2012 caters for the personal liability of officers and members of the council. The Foundations Act 2012 states that (i) nothing in the charter or articles of a foundation, if any, or (ii) in a contract between a foundation and an officer of the foundation or a member of its council, shall relieve, release or excuse that person from any liability arising from any fraud, wilful misconduct or gross negligence committed by such person. Trusts Similarly, the role of trustee is an onerous one. The duties of a trustee range from the fundamental fiduci - ary duties to act in good faith to obligations to act in accordance with the terms of the trust instrument. The Trusts Act 2001 provides that a trustee who commits or concurs in a breach of trust shall be liable for: • any loss or depreciation in value of the trust prop - erty resulting from the breach; and • any profit which would have accrued to the trust had there been no breach if the trustee is found to have acted in breach of the Trusts Act 2001 and contrary to the terms of the trust. A trustee may not set off a profit accruing from one breach of trust against a loss or depreciation in val - ue resulting from another. Where trustees commit a breach of trust, they shall be liable jointly and sever - ally. Furthermore, the Trusts Act 2001 stipulates that noth - ing in the terms of a trust shall relieve a trustee of liability for a breach of trust arising from their own fraud, wilful misconduct or gross negligence. The Trusts Act 2001 states nonetheless that a benefi - ciary may relieve a trustee of liability for a breach of trust and also indemnify the trustee against liability for breach of trust, provided that the beneficiary: • is not a minor or a person under legal disability; • has full knowledge of all material facts; and
6. Roles and Responsibilities of Fiduciaries 6.1 Prevalence of Corporate Fiduciaries Trusts It is mandatory under the Trusts Act 2001 to have a qualified trustee, which can be a licensed individual or a management company as corporate trustee. Management companies and private trustees are reg - ulated and licensed by the Financial Services Com - mission and are subject to a number of rules and regulations. Under the Trusts Act 2001, a trustee has the posi - tive duty, in the exercise of their functions, to observe utmost good faith and to act with due diligence, with care and prudence, and to the best of their ability and skill. The trustee must also administer the trust and exercise their functions strictly in accordance with the terms of the trust and only in the interest of the ben- eficiaries or in fulfilment of the purpose of the trust. Under the Trusts Act 2001, a trustee has the duty to act impartially. In cases where there is more than one trustee, the trustees have to work together in accord - ance with the terms of the trust. Foundations Individuals may also make use of a foundation as an alternative to the use of a Will or a trust for succession planning and wealth management. A foundation is an amalgam of a trust and a company, and is governed by the provisions of the Foundations Act 2012. As per the Foundations Act 2012, every foundation shall have a council to administer the property of the foundation and carry out the objects of the foundation. In so doing, the council must conduct the affairs of its foundation in accordance with its charter and articles as well as the Foundations Act 2012. The council also has the duty to supervise the management and con - duct of its foundation, and act honestly and in good faith with a view to promoting the best interests of the foundation. The council must also exercise the care,
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