TRUSTEE COMPANIES ACT 2017
This Act provides for companies incorporated domestically to be licensed to carry on business as a trustee company servicing only non-residents of Samoa. There are three (3) types of licence available under the Act, the first being a Services Licence for all financial services business except Trust business; the second being a Trust licence for the provision and administration of trust services only; and the third being a Composite licence for both Services and Trusts. Each type of licence may be operated by a trustee company or managed for a trustee company. The manager may be either another Samoan licensed trustee company or a Samoan firm of lawyers or accountants. Furthermore, a private trustee company licence is also available which is exempted from licensing requirements.
Application for the relevant type of licence is made to the Regulator (“the Regulator”) who is also the Chief Executive Officer of SIFA with the prescribed fee and relevant forms. If its head office or registered office is outside Samoa, it must designate a principal office in Samoa and two (2) authorised agents who are subject, in their personal capacity to the jurisdiction of Samoa.
Whether for a Composite Licence, Services Licence or for a Trusts Licence, a trustee company shall be required to have adequate financial resources having regard to its business with a minimum of the higher of:
a. US$30,000; or
b. 25% of the TCSP’s annual operating expenditure, being all expenditure except for fees paid
A trustee Company must meet the minimum Insurance requirements being the lowest of the following:
a. US$1,000,000; or
b. 30x the last total of gross annual fees and commissions from the trustee company’s largest client by value of gross annual fees and commissions; or
c. 3 x the last total of gross annual fees and commissions from the trustee company’s financial services business or trust business depending on the type of licence held by the trustee company.
d. The insurer must be first approved by the Regulator.
ACCOUNTS AND AUDIT
The accounts of a trustee company must be audited at least once in every year and a copy of the auditor’s report submitted to the Regulator within 6 months of the end of the company’s financial year, together with an annual report.
TRANSFER OF SHARES
A trustee company may not issue bearer shares or share warrants to bearer. Nor can it issue, or legally, or beneficially transfer any of its shares or securities without the prior written approval of the Regulator.
CANCELLATION OF LICENCE
A trustee company’s licence may be cancelled if it has contravened or failed to comply with any condition of licensing; is in breach of any provisions of the Act; has contravened any other law which imposes duties or obligations upon it or it has committed a criminal offence anywhere, and the Regulator considers that it is undesirable that it should continue to be licensed. The company has a right to appeal to the Court against a decision to cancel its licence.
POWERS OF A TRUSTEE AND RIGHTS OF DELEGATION
The Act further outlines the powers of a trustee company to act as an executor or as an administrator of a deceased person’s estate, as a sole or joint trustee or agent of a trust. It also sets out the rights of an executor or trustee to delegate to a trustee company such of their powers as they may lawfully delegate and the rights of the trustee company to delegate its functions to a director or the secretary of the company.
WHOLLY OWNED SUBSIDIARIES MAY ACT AS TRUSTEE
A wholly owned subsidiary, with the written approval of the Regulator and for the purpose of the trustee company’s business may be nominated to act as trustee or nominee in the provision of services under the International Companies Act 1988, the Trusts Act 2014, the Foundations Act 2016 and any other Act prescribed by regulations. Such subsidiary company shall not be required to be licensed as a trustee company provided it remains wholly controlled and owned by the trustee company.
TRUST MONIES TO BE KEPT SEPARATE
All monies paid to a trustee company under a trust must be held separate from its own monies and in trust for the purpose for which it was paid.