CHAPTER 31:05
TRUST PROPERTY CONTROL ACT

ARRANGEMENT OF SECTIONS

    SECTION

    1.    Short title

    2.    Interpretation

    3.    Documents deemed to be trust instruments

    4.    Registration of trusts, trustees and trust service providers

    4A.    Trust service provider

    5.    Lodgement of trust instruments

    6.    Notification of address

    7.    Authorisation of trustee and security

    8.    Appointment of trustee and co-trustee by Master

    9.    Foreign trustees

    10.    Care, diligence and skill required of trustee

    10A.    Disclosure of status

    11.    Trust account

    12.    Registration and identification of trust property

    13.    Separate position of trust property

    14.    Power of court to vary trust provisions

    15.    Variation of trust instrument

    16.    Report of irregularities

    17.    Keeping of records

    18.    Master's call upon trustee to account

    19.    Master's requests for information

    19A.    Master's directives

    19B.    Information sharing

    20.    Custody of documents

    21.    Copies of documents

    22.    Failure by trustee to account or perform duties

    23.    Removal of trustee

    24.    Resignation by trustee

    25.    Death of trustee

    26.    Remuneration of trustee

    27.    Access to court

    28.    Validation of trust instrument

    28A.    Termination by trust

    29.    Establishment of Fund

    30.    Offences and penalties

    31.    Regulations

    32.    Repeal of Cap. 31:05

    33.    Savings

Act 11, 2018,
Act 10, 2019,
S.I. 102, 2019,
Act 4, 2022,
Act 2, 2025,
S.I. 7, 2025.

An Act to regulate the control of trusts; and to provide for matters connected therewith.

[Date of Commencement: 25th February, 2022]

1.    Short title

    This Act may be cited as the Trust Property Control Act.

2.    Interpretation

    In this Act, unless the context otherwise indicates—

    "accounting records" means a record that—

    (aa)    correctly explain all transactions of the trust;

    (bb)    enable the financial position of the trust to be determined with reasonable accuracy at any time; and

    (cc)    allow financial statements to be prepared;

[2 of 2025, s. 2(a)(i).]

    "bank" means a Bank licensed in terms of the Banking Act (Cap. 46:04);

    "beneficial owner" has the same meaning assigned to it under the Financial Intelligence Act (Cap. 08:07);

    "beneficiary" means a person who is or may become entitled to a benefit of any legal arrangement;

[2 of 2025, s. 2(b)(i).]

    "building society" means a building society registered in terms of the Building Societies Act (Cap. 42:03);

    "control" means a power, whether exercisable alone or jointly with another person or with the consent of another person under the trust instrument or by law, to—

    (aa)    dispose of or invest, other than as an investment manager, trust property;

    (bb)    direct, make or approve trust distributions;

    (cc)    vary or terminate the trust;

    (dd)    add or remove a person as a beneficiary or to or from a class of beneficiaries; or

    (ee)    appoint or remove trustees;

[2 of 2025, s. 2(a)(ii).]

    "foreign trust" means a trust created or governed by foreign law which seeks to administer and/or dispose trust property located in Botswana;

    "foreign trustee" means a person who is a non-resident, appointed as a trustee by or in accordance with the trust instrument of a foreign trust where such person administers or disposes trust property located in Botswana;

    "financial institution" includes a bank, building society or a non-bank financial institution;

    "funds" has the same meaning assigned to it under the Proceeds and Instruments of Crime Act (Cap. 08:03);

    "legal arrangement" means a relationship established pursuant to a contract between two or more parties that does not result in the emergence of a legal person;

[2 of 2025, s. 2(a)(iii).]

    "Master" in relation to this Act means the Master of the High Court and includes the Deputy Master, Senior Assistant Master and Assistant Master appointed under Part II of the Administration of Estates Act (Cap. 31:01);

    "non-bank financial institution" means a non-bank financial institution licensed in terms of the Non-Bank Financial Institutions Regulatory Authority Act (Cap. 46:08);

    "non-profit trust" means a trust established for the purpose of promoting chari table, religious, cultural, educational, social or fraternal purposes, or for the carrying out of other types of works for public benefit including, but not limited to—

    (aa)    the prevention or relief of poverty;

    (bb)    the advancement of education;

    (cc)    the advancement of religion;

    (dd)    the advancement of health or the saving of lives;

    (ee)    the advancement of citizenship or community development;

    (ff)    the advancement of arts, culture, heritage or science;

    (gg)    the advancement of sport;

    (hh)    the advancement of human rights, conflict resolution or reconciliation or the promotion of religious or racial harmony or equality and diversity;

    (ii)    the advancement of environmental protection or improvement;

    (jj)    the relief of those in need because of youth, age, ill-health, disability, financial hardship or other disadvantage;

    (kk)    the advancement of animal welfare;

    (ll)    the promotion of the efficiency of the armed forces of Botswana or of the efficiency of the police, fire and rescue services or ambulance services; or

    (mm)    any other purpose that may reasonably be regarded as similar to, or within the spirit of the above-mentioned purposes;

[2 of 2025, s. 2(b)(i).]

    "notarial deed" means a deed registered in terms of the Deeds Registry Act (Cap. 33:02);

    "protector" means a legal or natural person, other than a trustee, empowered by the trust instrument to oversee trustees' actions and to consider whether such actions are in the interest of the beneficiaries and may exercise such powers by——

    (aa)    approving the trustee's decision;;

    (bb)    revoking a trustee's decision;

    (cc)    removing a trustee;

    (dd)    appointing a new trustee; or

    (ee)    changing the jurisdiction of the trust;

[2 of 2025, s. 2(b)(ii).]

    "register" means the register of trusts, trustees, and trust service providers established and maintained under section 4;

    "settlor" means a person who transfers ownership of assets to a trustee, beneficiary or any person holding similar position in a legal arrangement, by means of an instrument;

[2 of 2025, s. 2(b)(iii).]

    "similar legal arrangements" means a legal arrangement with a similar structure or performs a similar function to a trust and is developed in other legal systems other than the common law;

[2 of 2025, s. 2(a)(iv).]

    "specified party" has the same meaning as assigned under the Financial Intelligence Act (Cap. 08:07);

[2 of 2025, s. 2(a)(v).]

    "trust" means a legal arrangement through which the ownership in property of one person is by virtue of a trust instrument made over or bequeathed—

    (aa)    to another person, the trustee, in whole or in part, to be administered or disposed of according to the provisions of the trust instrument for the benefit of the person or class of persons designated in the trust instrument or for the achievement of the object stated in the trust instrument; or

    (bb)    to the beneficiaries designated in the trust instrument, which property is placed under the control of another person, the trustee, to be administered or disposed of according to the provisions of the trust instrument for the benefit of the person or class of persons designated in the trust instrument or for the achievement of the object stated in the trust instrument, but does not include the case where the property of another is to be administered by any person as a trustee, executor, tutor or curator in terms of the provisions of any other written law;

[2 of 2025, s. 2(a)(vi).]

    "trustee" means any person, including the founder or settlor of a trust who acts as trustee by virtue of an authorisation under section 7 and includes any person whose appointment as trustee is already in force at the commencement of the Act;

    "trust instrument" means a written agreement, testamentary writing, court order or a notarial deed according to which a trust is created;

    "trust property" has the same meaning assigned to "property" under the Proceeds and Instruments of Crime Act;

    "trust service provider" means a person other than an attorney, accountant or company secretary that, as part of his or her business, provides any of the following services to a third party—

    (a)    acting as a formation agent for a trust;

    (b)    providing a registered office, business address or accommodation, correspondence or administrative address for a trust; or

    (c)    acting as, or arranging for another person to act as a trustee of an express trust; or

    (d)    providing administrative services to a beneficial owner of a trust; and

[2 of 2025, s. 2(c).]

    "ultimate effective control" has the same meaning as assigned to it under the Financial Intelligence Act (Cap. 08:07).

[2 of 2025, s. 2(a)(vii).]

3.    Documents deemed to be trust instruments

    If a document represents the reduction to writing of an oral agreement by which a trust was created or varied, such document shall for the purposes of this Act be deemed to be a trust instrument.