Major Updates to the BVI's Trusts and Probate Laws

Bills to bring in significant amendments to the BVI's trusts and probate legislation were gazetted on 12 March 2021. Below is a summary of the headline changes.

The Trustee (Amendment) Act, 2021 introduces a range of important new and updated provisions into the BVI's Trustee Act, 1961, including:

  • new "opt-in" rules which will empower the High Court to vary the terms of a trust, including the dispositive provisions, without the consent of adult beneficiaries if the High Court considers the variation to be expedient in the circumstances;
  • statutory rules allowing the High Court to set aside the flawed exercise of a fiduciary power, preserving in BVI law what has become known as the rule in Re Hastings Bass;
  • much-expanded "firewall" protecting BVI trusts from attacks based on foreign laws, including claims brought under forced heirship regimes or arising as a result of a personal relationship with a "person internal to the trust relationship";
  • updated and comprehensive provisions addressing the reservation or grant of powers to the settlor or other parties; and
  • new trustee record-keeping obligations in line with current international regulatory standards.

The Probates (Resealing) Act, 2021 expands the regime for resealing of foreign grants of probate or letters of administration by the High Court. Previously it was only possible to reseal grants from a limited number of jurisdictions including the United Kingdom and certain British territories. The new Act provides a detailed and comprehensive list of more than sixty jurisdictions which will be recognised for the purposes of resealing including all Commonwealth countries, Hong Kong and the United States.

These amendments are set to enhance further the BVI's standing as a leading jurisdiction for trusts and private client business. Walkers will be publishing a more detailed analysis of the new legislation, expected to come into force shortly, on our website.