¶ A01
Introduction and Use of the Form
Purpose. This appendix sets out a complete form of deed for a discretionary international trust under the Nevis International Exempt Trust Ordinance, Cap. 7.03(N) (rev. ed. 2017) ("NIETO" or "the Ordinance"), with a commentary and schedules. The form is drafted for the structure described in chapters 5 to 11 and 21 to 23: a trust registered as an international trust, a licensed Nevis trust company as the qualifying trustee, an independent professional protector resident outside the settlor's home country, a settlor who holds no powers and may be one of a class of discretionary beneficiaries, and protective, duress and change-of-law provisions. The form is original to the treatise. It is a teaching form and a starting point for counsel. Nevis counsel must review it against the Ordinance as it stands on the date of signing (see supra ¶ 510.07 on the 2020 Bill, which does not appear to have been enacted).
How the form is built. Each clause of the deed carries forward a rule or a model provision from the chapters. The protector clause adapts the model at ¶ 990.03; the amendment, change-of-law and duress clauses adapt the models at ¶¶ 1190.02 to 1190.04; the funding clauses adapt the models at ¶ 2190.08. Where the chapters identify a point of the Ordinance that is untested or awkwardly drafted, the clause states a drafting choice and the commentary in ¶ A20 identifies the paragraph that discusses it. The form adds no requirement that the Ordinance does not impose. Where it goes beyond the Ordinance, as it does in requiring a funding record or an opinion before a change of law, it does so as a matter of drafting choice, and the commentary says so.
Conventions. Words in square brackets are choices or blanks to be completed: [name], [address], [date], [number]. Alternatives are shown as [first choice] [second choice], and the drafter deletes the one not used. Optional clauses are enclosed in square brackets as a whole. Defined terms are capitalized. Section references in the deed are to the Ordinance unless stated otherwise. The deed refers to the High Court of Justice of the Eastern Caribbean Supreme Court sitting in Nevis as "the Court" (see supra ch. 3).
The assumed facts. The form assumes a settlor who is a natural person domiciled and resident outside St. Christopher and Nevis, who is solvent and faces no known claim on the date of each transfer, and who wishes to provide for a spouse and descendants. It assumes that the trust will hold its investments through one or more underlying companies formed outside Nevis or through a Nevis limited liability company (see supra ch. 17), that no land in the Federation will be held (NIETO § 2), and that the trustee will be the only Nevis person involved in administration. A settlor who is a United States person should also read chapter 29: the form contains no tax provisions, and United States counsel must decide whether the trust is to be a grantor trust and draft accordingly.
Order of signing and funding. The order in which the documents are signed and the trust is funded matters to the protection of the trust in the same way as their text (see supra ¶¶ 560.10, 690.05). The usual sequence is set out in Table A-1.
Table A-1. Sequence of settlement, registration and funding.
| Step | Document or act | Who acts | Authority |
|---|---|---|---|
| 1 | Due diligence on settlor, protector and beneficiaries; source of funds | Trustee | Ch. 28 |
| 2 | Schedule of assets and liabilities; review of known claims | Settlor and counsel | ¶¶ 2150, 2190.03 |
| 3 | Protector's and Trustee's acceptances (Schedules 4 and 5) | Protector, Trustee | ¶ 730 |
| 4 | Deed signed with nominal initial property (Schedule 1) | Settlor, Trustee | ¶ 640 |
| 5 | Application for registration with the trustee's or attorney's certificate (Schedule 6) | Trustee or attorney | NIETO § 43(5)–(6) |
| 6 | Certificate of registration issued | Registrar | NIETO § 43(7)–(8) |
| 7 | Each substantial transfer, with a funding record under clause 3.4 | Settlor, Trustee | NIETO §§ 26, 50; ¶ 2190.08 |
| 8 | Annual renewal within the year of the certificate | Trustee | NIETO § 44 |
Registration before funding. Registration is part of the definition of an international trust, so property transferred before registration is transferred to a trust that is not yet within the Ordinance (see supra ¶¶ 540.02, 560.10). The form therefore recites a nominal initial sum and provides in clause 3.2 that the Trustee shall accept no further property until the certificate of registration has issued. The dates of registration and of each transfer should be recorded, because the time bars in sections 26 and 50 run from the date of each transfer (see supra ch. 21).
What the form does not contain. The form does not contain a power for the settlor to revoke or amend the trust, a power for the settlor to direct investments or distributions, or a power for the settlor to remove the trustee or the protector, although section 53 would permit each of them (see supra ¶ 680.01). The omission is deliberate. Retained powers are evidence of control in a foreign court and are the powers a foreign court will order the settlor to exercise (see supra ¶¶ 2190.07, 2530). A drafter who adds any of them should read chapters 9 and 25 first.