The trust industry in The Bahamas is set to benefit from a recent legislative update. The Trustee (Amendment) Act, 2025 (the “Trustee Amendment Act”) introduces notable changes to Section 77 (1) of the Trustee Act, 1998 (the “Trustee Act”). In essence, this amendment broadens the class of persons who can apply for court guidance and clarifies certain procedural aspects of such applications. Below is a breakdown of the key differences.
Section 77 (1) of the Trustee Act
“(1) A trustee or personal representative may without commencing an action apply upon a written statement for the opinion, advice or direction of the Court or Judge in Chambers on any question respecting the management or administration of the trust property or the assets of any testator or intestate.”
Section 77 (1) of the Trustee Amendment Act
“(1) A trustee, personal representative or power holder may apply to the Court sitting in private (with or without commencing an action) for the opinion, advice or direction of the Court, on any question respecting the (a) management or administration of the trust property; or (b)assets of any testator or intestate.”
Comparative Analysis and Benefits of the Amendment
This amendment introduces several key changes:
- Expansion of Applicant Pool: The most notable change is the inclusion of a “power holder” as a person that can apply to the Court for opinion, advice, or direction. This is a significant development because it acknowledges the importance of trusted third parties who can play a pivotal role in the administration of a trust and its assets. Individuals or entities holding such powers (prima facie whether or not such powers are of a fiduciary nature) under a trust will now have direct access to the Court for guidance on matters related to their authority.
- Flexibility: Section 77(1) of the Trustee Act allows applications to be made “without commencing an action”. The amendment provides greater flexibility by expressly stating that an application can be made “with or without commencing an action”. This may allow for a more tailored approach to seeking the Court’s guidance.
- Clarification of Court Setting: Section 77 (1) of the Trustee Amendment Act explicitly states that the Court will sit “in private” when considering directions applications. The amendment essentially enshrines confidentiality in connection with these proceedings, which is oftentimes crucial in order for sensitive trust matters to be fully ventilated.
Conclusion
Section 77 (1) of the Trustee Amendment Act represents a positive step forward for the Bahamian fiduciary services industry. By broadening the range of applicants and introducing greater procedural flexibility, the Act aims to provide a clearer pathway for “power holders” to obtain judicial guidance. Industry professionals are encouraged to familiarise themselves with these changes.
AUTHOR
Dinesh Menon
The information contained in this article is provided for the general interest of our readers but is not intended to constitute legal advice. Clients and the general public are encouraged to seek specific advice on matters of concern. This article can in no way serve as a substitute in such cases.
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