¶ 1101
Overview
Scope of the chapter. A trust settled for an indefinite period will outlive the circumstances in which it was settled. The family moves, the beneficiaries marry and divorce, the tax law of the settlor's country changes, the trustee is sold or loses its licence, and a creditor may appear. A Nevis international trust may last without limit of time. Nevis International Exempt Trust Ordinance, Cap. 7.03(N), § 5(1)–(2) (rev. ed. 2017) ("NIETO"). Its deed must therefore provide the means to change it, and the planner must know which changes the Ordinance permits, which it leaves to the general law, and which it does not provide for at all. This chapter examines four kinds of change: variation of the terms of the trust; resettlement of the trust property on new trusts; change of the law that governs the trust, with or without a change of trustee and place of administration; and termination.
The statutory provisions. The Ordinance contains no single Part on variation or migration. The rules are spread through it. Section 4 allows the terms of a trust to provide for a change of its proper law and protects the trust against the old law on a change to Nevis and against Nevis law on a change away. NIETO § 4(3)–(6). Section 10 gives the protector a default power to change the trustee. Id. § 10(2)(a). Section 24 allows the Court to make a declaration "as to the variation or enforceability of a trust" and orders on termination. Id. § 24(1)(b), (d). Section 39 allows the trustee to combine and divide trusts. Id. § 39. Section 40 states a principle of freedom of disposition. Id. § 40(4). Sections 43 and 50 govern the entry of a foreign trust into the Nevis register and the effect of that entry on the time bars. Id. §§ 43(3)–(4), 50(5). Sections 13, 15 and 45 govern lapse, distribution on termination and notice to the registrar. Id. §§ 13, 15, 45. Section 53 confirms that a settlor may keep a power to amend or revoke without invalidating the trust. Id. § 53(1)(a), (c).
What the Ordinance does not contain. Three gaps shape the practice. First, the Ordinance has no general statutory jurisdiction, of the kind created in England by the Variation of Trusts Act 1958, allowing the Court to approve an arrangement on behalf of minors, unborn persons and unascertained beneficiaries. The federal Trusts Act, Cap. 5.19, contains such a power, but by its own terms it does not apply to trusts registered under the Ordinance except in defined cases (see infra ¶ 1130.04). Second, the Ordinance has no redomiciliation or continuation procedure for trusts like the procedures the Nevis company statutes provide for companies. A trust moves by a change of governing law and, almost always, a change of trustee. Third, there is no reported Nevis decision on a change of governing law or on the migration of a trust into or out of Nevis. In re Corona Trust, the only reported Nevis decision on the Ordinance's variation provisions, concerned amendments to the deed of a trust that stayed in Nevis (see infra ¶ 1130.07).
Relation to other chapters. The choice of governing law at creation is examined in chapter 6, and the change of governing law here (see supra ¶ 660). The registration of a qualified foreign trust is described in chapter 5 (see supra ¶ 560.03); the consequences of a migration into Nevis for the time bars are examined here. The trustee's powers and the trustee's position under foreign pressure are in chapter 7 (see supra ¶¶ 740, 780), and the protector's consent power, including the Privy Council's 2026 decision in A v. C, in chapter 9 (see supra ¶ 940.04). The rule in Saunders v. Vautier and section 5(3) are introduced in chapter 8 (see supra ¶ 860). Charitable variation and cy-près are in chapter 10. The creditor's challenge to a transfer is in chapter 21, the foreign judgment rules in chapter 23, and the American court's response to a flight clause in chapter 25 (see infra chs. 21, 23, 25). The United States tax treatment of a trust that moves is outlined here and examined in chapter 29.
Plan. Section 1110 sets out the means of change and who holds them. Section 1120 examines express powers of variation and their limits. Section 1130 examines variation by the Court. Section 1140 deals with resettlement, combination and division. Section 1150 examines the change of governing law. Sections 1160 and 1170 apply those rules to a trust moving to Nevis and a trust moving away. Section 1180 deals with termination. Section 1190 offers model provisions and a checklist.