The Trust Property Control Act of 2018 (TPC) was introduced with the intent of governing and regulating all existing and future Trusts in Botswana.
To this end, Section 26 of the TPC required that any Trust executed before the commencement of the Act (Existing Trusts) was to be lodged and registered with the Master within six months of the Act’s commencement, such date originally being 31st December 2019 but subsequently thereafter extended to the 31st December 2020 (the Cut-off Date) .
The Cut-off Date has come and gone and the Master’s Office no longer accepts for registration and/or authorisation of any Existing Trust. The Master’s Office in this respect argues that they do not have the power or authority under the TPC to receive and register Existing Trusts after the Cut-off Date.
Non-registration of an Existing Trust under the TPC does not, however, invalidate or render void an Existing Trust. Nor does it divest unregistered trustees of their authority to act as such. What is clear, however, is that failure to register an Existing Trust is a criminal offence under the TPC.
The effect of the above is that following the Cut-off Date, we have a strange situation where unregistered Existing Trusts can continue to exist and operate, albeit outside the regularity regime created by the TPC. This, in our view, could not have been the intention of the drafters of the TPC. We are accordingly of the view that the Master’s Office is potentially wrong in claiming that it has no power to accept and register an Existing Trust after the Cut-off Date.
More particularly, when Section 26 of the Act is read with Section 4 and Section 5 of the Act (and which such latter sections require the registration of a trust immediately upon any new trustee being appointed to a trust), it is our opinion that Existing Trusts are capable of lodgement and registration after the Cut-off Date so long as all trustees of the Existing Trust have been replaced with new trustees.
Put differently, Section 26 applies only to Existing Trusts in which there has been no change of trustees subsequent to the commencement of the Act. If we are correct, then it would mean that the restrictions imposed by Section 26 on registration after the Cut-off Date could be overcome by merely appointing new trustees to a trust and applying for registration under Section 4 and Section 5 of the Act.
The above issue will, however, become academic when the proposed Trust Property Control Bill 2021 (published on 23 December 2021) is passed and comes into effect. The said Bill deals with the problem identified above and, in this respect, provides an express power for the Master to receive registrations of Existing Trusts for a further six months following the commencement of the amended Act.
The amendment, however, expressly provides that any Existing Trusts that fail to register within such timeframe will be deemed to be null and void and all property thereof will vest in a Void Trust Fund. This new provision effectively means that unless Existing Trusts are registered under Section 26 of the Act on or prior to the new Cut-off Date, they will automatically cease to exist, and all of their assets will vest in the Void Trust Fund. This will have disastrous consequences for Existing Trusts holding large or valuable asset portfolios.
The Commercial Department at Akheel Jinabhai and Associates (in association with Mckee Commercial Law), headed by Mark Mckee, has the expertise and skills to assist with trust registration and administration.
