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45.   Avoidance of fraud

Revised Laws of Saint Lucia (2021)

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45.   Avoidance of fraud

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    (1)   Where it is proven by a creditor in proceedings that are final and not subject to further appeal that—

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      (a)     (i)     an international trust was settled or established, or

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        (ii)     a disposition was made to or by an international trust, and the property after the disposition constituted trust property; and

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      (b)     the international trust was settled, created, migrated, continued, established or property was disposed by or on behalf of the settlor or the settlor's nominee with the intent being to defraud the creditor of the settlor;

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      (c)     the disposition did, at the time the settlement, creation, migration, continuation, establishment, or disposition took place, render the settlor insolvent,

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    the settlement, creation, migration, continuation, establishment, or disposition shall not be void or voidable, but the international trust shall be liable to satisfy the creditor's claim out of property of the international trust and the amount of the liability shall only be to the extent of the interest that the settlor had in the property disposed to the international trust prior to its settlement, creation, migration, continuation, establishment, or disposition, and to any accumulation to that property subsequent thereto.

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    (2)   Unless it is proven, in accordance with the provisions of subsection (1), that an international trust was settled or created, or a disposition was made to or by an international trust, with the intent being to defraud the creditor and with the result of the settlement, establishment or disposition being the insolvency of the settlor, the Court shall not find that the international trust is liable to satisfy the creditor's claim out of trust property or that any disposition to the international trust is void or voidable.

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    (3)   In determining whether the creation of an international trust, or a disposition to or by an international trust has rendered the settlor insolvent, regard shall be had to the fair market value of the settlor's property, not being property of or relating to the international trust, at the time immediately after the settlement, establishment or disposition and in the event that the fair market value of the property exceeded the value of the creditor's claim at the time, then the international trust so settled or established or the disposition made shall, for the purposes of the Act, be deemed and presumed not have been settled or established or the property disposed of with intent to defraud the creditor.

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    (4)   Where an international trust is liable to satisfy a creditor's claim in the manner provided for in subsection (1), but is unable to do so by reason of the fact that the property has been disposed of other than to a bonafide purchaser for value, then the disposition shall be void.

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    (5)   For the purposes of this section, the onus of proof of the settlor's intent to defraud the creditor lies on the creditor, and the required standard of proof is to demonstrate the settlor's intent beyond a reasonable doubt.

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