Legal Notice 15 of 2015, published on the 6th January, 2015, finally seeks to provide some clarity on the registration, conservation and access to notarial trust deeds in order to give clarity to notaries and to users of the system, particularly in the light of article 43A(6) of the Trusts and Trustees Act (“TTA”, Cap. 331 of the Laws of Malta). Article 43A(6) of the TTA provides that: “It shall be the duty of the trustee to submit to the depository notary all documents relative to the trust within fifteen days of coming into existence or of coming into possession of the trustee or of the date of relevant event to which the document refers, as the case may be. On receipt of any such document the notary shall declare in writing on the document the date, time, and place of receipt. Such declaration shall, until the contrary is proved, be evidence of its content. All such documents shall be held for safekeeping and registration in the manner as may be laid down by the Authority from time to time: Provided that the depository notary shall not be held responsible for the failure of the trustee to deliver the documents relative to the trust as laid down in this sub-article.”
For this purpose the legislator has thought fit to bring in line the duties that a notary has in relation to notarial trust deeds and trust documents with a notary’s existing duties in relation to the duty of care and custody of acts and registers under the Notarial Profession and Notarial Archives Act. Indeed, the ‘Trusts and Trustees Act (Notarial Trust Deeds Registration, Conservation and Access) Regulations 2015’ lay down detailed rules on:
- the conservation and registration of notarial deeds (both those published before the coming into force of these Regulations as well as those published on or after);
- the depositary notary’s duty of safekeeping of documents held by him/her;
- the depositary notary’s duty to submit a return to the Notary to Government listing all trusts in relation to which he/she acts as depositary notary; and
- the accessibility of deeds deposited for preservation in the Notarial Archives.
The Regulations also provide for the inspection of all trust deeds to the Review Officers of the Court of Revision of Notarial Acts in the same manner as other notarial deeds.
In terms of regulation 4 of the Regulations, all notarial trust deeds published on or after the coming into force of these Regulations shall be bound by the publishing notary in a separate volume, one for each notarial trust deed. The publishing notary is also obliged to create a register of the said trust deeds which shall be held by the publishing notary. All notarial trust deeds must also be conserved in the notarial archives and the access to such deeds shall be regulated in terms of these Regulations.
Regulation 5 provides that the depositary notary must keep all documents relative to a trust separate from all other documents held by such depositary notary in the execution of his functions and the depositary notary is also responsible for establishing an adequate system for the preservation of all documentation relating to the trust while he is so engaged. Furthermore, the records of each trust must be kept separate from those relating to other trusts and must be held for safekeeping under lock and key.
Dealing with access to trust documents, regulation 7 of the Regulations provides that in the case of a trust set up by a testamentary disposition, either where the terms of a trust form an integral part of a will or they are annexed to the will, they shall be accessible to any person after the death of the testator in accordance with the provisions of article 68 of the Notarial Profession and the Notarial Archives Act (Cap. 55 of the Laws of Malta). On the contrary, with regard to any notarial inter vivos trust deed that has been deposited for preservation in the notarial archives, such trust deed shall not be accessible to any person, and copies thereof shall not be granted to any person except:
- with the written authority of the original trustee or substitute trustee, as confirmed to be so by the depositary notary, and provided that the trustee shall seek the advice of the depositary notary prior to granting access to such person (and with other formalities being required to be observed); or
- under the authority of any Court (regulation 8).