A Q&A guide to private client law in the British Virgin Islands.
The Q&A gives a high level overview of tax; tax residence; inheritance tax; buying property; wills and estate management; succession regimes; intestacy; trusts; co-ownership; familial relationships; minority and capacity, and proposals for reform.
To compare answers across multiple jurisdictions, visit the Private client Country Q&A tool.
The Q&A is part of the PLC multi-jurisdictional guide to private client law. For a full list of jurisdictional Q&As visit www.practicallaw.com/privateclient-mjg.
There is no official tax year. Residents of the British Virgin Islands (BVI) are not currently subject to income tax (see Question 2, Residence).
Domicile is not a concept used to determine liability to any tax in BVI.
Income tax has been set at 0% since the introduction of a payroll tax in 2004 (see below, Other). The test for residence is different for an individual and a company:
For an individual, the test is whether he or she has been resident in the BVI in the year of income.
For a company, the test is whether the control and management of the body's affairs was exercised in the BVI in the year of income. Residence in the BVI in the year of income by more than half of the members of the board of a company is deemed to amount to residence of the company.
However, as long as the rate of income tax is not collected, the concept of residence has no relevance for determining liability to tax in the BVI.
The liability of employers and employees in the BVI to pay the payroll tax is determined by reference to the relationship of employment. The tax is payable on the remuneration or deemed remuneration of every employee and self-employed person. It is payable by the employer or self-employed person at either 10% or 14%. In the case of employees, 8% is deducted at source and the balance is paid by the employer.
There are no exit taxes (other than a nominal airport departure tax) or other significant financial consequences of ceasing to be a citizen, domiciliary or resident of the BVI.
There are no tax rules affecting temporary residents, although liability to pay the payroll tax may arise from an employment relationship (as employer or employee) irrespective of duration of residence (see Question 2, Other).
There are no taxes on gains in the value of real estate or other assets owned by foreign nationals who are resident or domiciled in the BVI.
There is no tax on income received by a foreign national and there is no withholding tax from such income. Remuneration from a relationship of employment is taxable under the Payroll Taxes Act and from which a deduction of 8% is made at source.
There is no inheritance or gift tax regime or equivalent in the BVI.
Not applicable (see Question 7).
There are no other taxes on death or on lifetime gifts.
Ad valorem stamp duty is usually charged on purchases of land situated in the BVI and any such purchase will require a licence from the BVI government. The rate of stamp duty is 4% of the higher of consideration paid or market value.
Furthermore, a land and house tax is payable annually on land and houses in the BVI. The rate of land tax is US$3 dollars on the first acre and US$1 for every other acre or part in the case of land in the ownership of a British Virgin Islander. For all other persons, the rate is 1% of the designated value in relation to the first acre and 0.5% of the designated value of every other acre or part. The rate of house tax is 1.5% of the annual rent which the property might reasonably be expected to yield.
The following instruments are exempt from stamp duty:
Instruments relating to transfers of property to or by a BVI business company (other than an interest in land situated in the BVI). A BVI business company is one which is registered, re-registered or continued under the Business Companies Act 2004.
Instruments relating to transactions in respect of the shares, debt obligations or other securities of such a company.
Any other transactions relating to the business of such a company.
BVI residents are not taxed on real estate or other assets overseas.
The BVI is not party to any double tax treaties.
It is not essential to make a will to dispose of assets situated in the BVI (including shares in a BVI business company).
Where it is possible to make a valid will effectively disposing of BVI-situated assets, failure to do so will mean either that the:
BVI intestacy rules apply where the deceased is domiciled in the BVI.
Default succession rules of the jurisdiction of domicile at death will apply where the deceased was domiciled outside the BVI.
A will may validly dispose of a BVI-situated estate, whether or not it is governed by BVI law, if the will is:
Valid under the laws of the jurisdiction in which the property is situated, when it disposes of immovable property situated other than in the BVI.
Valid under the laws of the jurisdiction in which the testator dies domiciled, when it disposes of movables.
It is advisable to make a will disposing of BVI-situated assets, if those rules would result in a situation that is contrary to the property owner's wishes.
Whether or not the disposition of property will be valid, making a will:
Allows the testator to choose the persons who will administer the BVI-situated estate.
May be both quicker and cheaper than obtaining a grant of letters of administration.
A will may not always effectively dispose of movable assets (including, for the purposes of the conflict of laws, shares in a BVI business company). This is because succession to movables will be determined by the law of a deceased person's domicile at death and provisions in a will inconsistent with that law may not take effect for example, in relation to a forced heirship regime. However, it may be possible to avoid the application of that law by making a lifetime transfer into a BVI trust (see Question 24).
The formality requirements for any will disposing of immovable property in the BVI (irrespective of domicile of the testator) or movable property (wherever situated) of persons dying domiciled in the BVI are that:
It must be in writing.
It must be signed at its foot or the end by the testator (or by some other person at the direction and in the presence of the testator).
The testator must make or acknowledge his signature (or that of the person who signed at his direction and in his presence) before two witnesses both present at the same time.
The two witnesses must attest and subscribe the will in the testator's presence.
The formalities apply unless the will is either:
Privileged (for example, testamentary dispositions of personal property effected by members of the armed forces personnel in actual military service).
Made at the direction of the court on behalf of a patient under the Mental Health Act.
In relation to immovable property situated outside the BVI, the formality requirements will be those of the jurisdiction where the immovable property is located. In relation to movable property (wherever situated) of persons who die domiciled outside the BVI, the formality requirements will be those of the jurisdiction where the testator died domiciled.
Since there are no inheritance or estate taxes or duties in the BVI or any taxes on lifetime transfers, there are no BVI fiscal consequences for a beneficiary redirecting his entitlement to others. However, since there is no statutorily recognised concept of a redirection, a beneficiary must either:
Disclaim his entitlement.
Accept it and transfer it according to the mode of transfer appropriate to the property in question.
A disclaimer or transfer will be effective if the beneficiary is of full age and capacity (subject, in the case of a transfer, to a disclaimer by the intended recipient).
The place of execution of a will has no relevance to its validity or recognition under BVI law.
A person can lawfully deal with the BVI-situated estate of a deceased person (for example, by transferring title to registered shares in a BVI business company) only where he is acting under a:
Grant of representation from the BVI court.
Foreign grant resealed under the Probates (Resealing) Act (see below, Validity of foreign grants of probate).
Any person that deals with the BVI-situated estate of a deceased person without such grant risks incurring personal liability (if another person establishes entitlement under a BVI or resealed foreign grant).
Personal liability may also attach to directors of a BVI business company, who for example:
Permit persons who have not obtained a grant of representation to be registered as shareholders.
Permit the registration of a transfer of shares purportedly by the personal representatives of a deceased member under section 52(2) of the Business Companies Act 2004 without a valid grant of representation.
It is unclear whether liability can be removed by a provision in the company's articles allowing the directors to accept such evidence as they deem sufficient of title to the shares of a deceased member (for example, a death certificate and an apparently formally valid will appointing an executor and leaving the shares to the intended transferee). The transferee's rights, being rights under a gratuitous or voluntary transfer, are subject to the pre-existing equitable rights of others as the transferee is not a bona fide purchaser.
The Probates (Resealing) Act, allows for the resealing of grants obtained in a limited number of jurisdictions with a historic and continuing UK connection for example, Commonwealth countries and other UK Overseas Territories (but no longer Hong Kong).
Otherwise, foreign grants of representation concerning the estates of deceased persons are not recognised as conferring title to deal with BVI-situated estate. However, evidence of a foreign grant may be relevant to entitlement to a BVI grant of letters of administration (see below).
Therefore in most cases, anyone who wants to deal with the BVI-situated estate of a deceased person should obtain a grant of representation from the BVI court.
The BVI court will make a grant of representation to a person or persons in respect of BVI situated estate in the following order of priority:
A grant of probate to the persons named as executors of a valid will (see Question 16).
A grant of letters of administration to the persons entrusted with administration of the deceased's estate by the courts of the jurisdiction of the deceased's domicile at death where:
no valid will can be identified; or
In such cases, the grant of letters will be with the will annexed.
A grant of letters of administration, where no person has been entrusted with the administration of the estate of the deceased person by a court of the jurisdiction where the deceased died domiciled, to the person beneficially entitled to the estate under the laws of that jurisdiction where the deceased died domiciled. Where more than one, to such of them as the court may direct. This situation may arise because the jurisdiction in question does not require administration but allows heirs to succeed directly or because it requires administration of the estates of deceased persons but no person has yet been entrusted with the task of administration.
The BVI court has discretion to make a grant to other persons where circumstances require.
There are no significant consequences for the administration of the BVI estate of a deceased foreign national if that national dies in the BVI. What is important is where the deceased was domiciled at death and the location of any immovable property (see Question 16).
The deceased's personal representatives are exclusively responsible for administering the estate. The personal representatives will be either the:
Validly appointed executors (if willing to act).
Court appointed administrators, in all other cases.
If willing to act, a person validly appointed as executor in a will has a duty to obtain probate of the will under which the appointment is made and may be required to do so or renounce executorship. An administrator has no equivalent duty although a person who seeks a grant where there is a valid will but with no named executor (or none willing to act) must produce the will so that it can be annexed to the grant. The personal representative must then:
Access the deceased's BVI estate.
Pay the just debts of the deceased, wherever incurred, out of the BVI estate.
After payment of debts, distribute the BVI estate of the deceased in accordance with applicable testate or intestate succession law (that is, the law of jurisdiction of domicile at death in relation to movables and the law of jurisdiction where any immovable property is located in relation to immovables (see Question 16).
Personal representatives have powers of sale and disposition necessary to discharge their duties and many, if not all, of the statutory powers of a trustee. They also have the right to seek guidance from the BVI court on the performance of their duties at the expense of the deceased's BVI estate.
The estate of a deceased person will vest, from the moment of death, in the executors of any valid will made in accordance with the rules set out in Questions 15 and 16. The probate or proving of the will is conclusive evidence of vesting but does not effect it.
Where there is no such will (or a will validly appointing an executor who is willing to act), the estate will vest in the persons to whom a grant of letters of administration is made by the BVI court (see Question 18, Validity of foreign grants of probate). It is thought that, pending such vesting, the estate vests in the Probate Judge (by analogy with the former rule in England and Wales).
The effect of the estate's vesting in the personal representatives of a deceased person is to vest the estate in them as legal beneficial owners, subject only to their duty to administer the estate according to applicable law. The effect of this rule is that persons entitled under applicable succession law to the estate of the deceased have no proprietary rights, this includes both:
Property specifically bequeathed to these persons.
Items or portions of the estate to which they are specifically entitled under foreign law.
Establishing title and gathering in assets (including any particular considerations for non-resident executors)?
Title to assets situated in the BVI must be established in either the resealing of a foreign grant or of a grant of representation from the BVI court (see Question 18). This involves producing the grant as conclusive evidence of title and having any entry in a register of title (for example, to shares in a BVI business company) altered to reflect the fact that title to the property has vested in the personal representatives. However, validly appointed personal representatives may transfer the deceased's shares to another without having taken the intermediate step of having their names entered on the members' register (section 52(2), Business Companies Act 2004).
For further information concerning the establishing of title to registered shares in a BVI business company (see Question 18, Validity of foreign wills).
No BVI taxes or duties are payable on or as a result of death.
Since the BVI estate of a deceased person is liable for the debts of the deceased on a worldwide basis, it is advisable to take advantage of the statutory protection afforded by advertisement (section 28, Trustee Act, Cap 303). This allows the personal representatives to give notice that they are about to distribute. They can then distribute the property having regard only to the claims of which they have been notified at the expiry of 28 days from the date of advertisement.
An estate with an element in another jurisdiction does not in itself raise any time limit issues. However, where a grant is applied for more than three years after death (which may happen in cases with a foreign element) the reason for the delay must be certified on affidavit. The court has the power to require further proof of the delay if unsatisfied with the certified reason.
There are not any particular issues with valuation in cases with a foreign element. This is because only assets situated in the BVI will be administered under a BVI grant and the declaration of value in support of the application for the grant is confined to the value of the BVI situated estate.
It is possible to challenge a will (even one which has been admitted to probate in common form, that is, under the non-contentious probate rules) on a number of grounds. However, the will of a person who dies domiciled in the BVI cannot be challenged on the ground that it fails to make adequate provision for the claimant since such persons have complete freedom of testamentary disposition.
The grounds on which a challenge to the will of such a person may succeed are:
Proof of incapacity to make the will, through:
not having mental capacity sufficient to make a will; or
being a minor.
Lack of knowledge and approval of the will's contents.
Execution of the will by mistake.
Fraud or undue influence.
Lack of due formality (see Question 16).
The will of a person who dies domiciled outside the BVI may be challenged as to its essential or formal validity only on the grounds recognised by the law of the jurisdiction in question.
There is no forced heirship regime imposed in the BVI. Persons who die domiciled in the BVI have complete freedom of testamentary disposition of their BVI-situated estate (see Question 23). Therefore, they also have complete freedom to make lifetime transfers of such property.
For persons who die domiciled outside the BVI, any provision of the law of their domicile at death which recognises forced heirship will be given effect as a matter of the administration of their BVI situated estate in relation to movables (including BVI business company shares).
If it is desired to avoid or modify the effect of any applicable forced heirship regime (in relation to, for example, BVI business company shares) consideration should be given to making a lifetime transfer of the shares into a trust the governing law of which is BVI law. It is a practical requirement of any such transfer into trust that the trusteeship is held outside the jurisdiction of domicile at death so that the trustee is not in practice compellable by the courts of that domicile.
Any such transfer into trust will be effectively immune from forced heirship claims arising under foreign law. This is because the BVI court cannot set aside any such transfer or trust on the ground that it defeats or avoids forced heirship rights under foreign law (section 83A, Trustee Act, Cap 303). The BVI court is also prevented from enforcing any foreign judgment inconsistent with the provisions of section 83A.
Where the gift into trust is structured appropriately, it should be incapable of being undone by any court, whether in the BVI or in the jurisdiction imposing forced heirship.
Not applicable (see Question 24).
Not applicable (see Question 24).
Not applicable (see Question 24).
Real estate situated in the BVI, as immovable property for the purposes of the conflict of laws, will usually be subject to BVI succession law. Immovable property situated outside the BVI will usually be subject to the succession laws of the jurisdiction in which it is located. Movable property wherever situated will usually be subject to the succession laws of the deceased's domicile at death (see Question 16).
Renvoi may be applicable in relation to succession to immovable property. It is usually applied in similar circumstances to those where it is applied at common law in England and Wales and without regard, therefore, to the English Wills Act 1963. Therefore, if foreign courts have refused jurisdiction, the BVI courts will, in certain circumstances, accept a reference back. This is a complex area of private international law.
For persons dying domiciled in the BVI, the intestacy rules applicable to a BVI situated estate are as set out in the Intestate Estates Act, Cap 34.
A surviving spouse will take the chattels and 10% of the estate (or US$240, if greater) absolutely and, if any of specified categories of relatives of the deceased exist, the spouse will take a life interest in the residue of the estate. However, the capital interest will be held on statutory trusts for the specified categories of relatives in descending order:
Siblings of the whole blood (that is, those who share both parents with the deceased).
Siblings of the half blood (that is, those who share only one parent with the deceased).
Uncles and aunts of the whole blood.
Uncles and aunts of the half blood.
Only if no persons exist in any of the above categories will the surviving spouse take the estate absolutely. If no such persons or any spouse survives, the entire estate passes to the Crown which may make provision out of it for dependants for whom the deceased might reasonably have been expected to provide.
In respect of a person dying domiciled outside the BVI, the intestacy rules of the jurisdiction of domicile at death will govern succession to movables (including shares in a BVI business company). In relation to immovable property, the intestacy rules of the jurisdiction in which the property is located will apply.
For persons dying domiciled in the BVI, it is not possible to challenge the adequacy of provision made under the Intestate Estates Act.
For persons dying domiciled outside the BVI or in relation to immovable property, the possibility of challenge to the adequacy of the provision made by the law of the jurisdiction is a question of the law of that jurisdiction.
Both domestic and foreign trusts are recognised in the BVI. There is no taxation of either except for a US$100 trust duty which must be stamped on any instrument:
Creating or evidencing a trust, the governing law of which is BVI.
Which changes the governing law of a trust to that of the BVI.
The full range of trusts capable of being administered by the courts of equity can be established under BVI law, for example:
Fixed interest trusts.
Accumulation and maintenance trusts.
Charitable and non-charitable purpose trusts.
Trusts may be used for a wide range of purposes including family or employee provision, philanthropic and commercial.
The Virgin Island Special Trusts Act 2003 (VISTA) allows for any of these types of trusts to be established over the shares in a BVI business company so that the settlor may:
Disapply (to the extent desired) the prudent man of business rule. The effect of disapplying the prudent man of business rule is that the trustee of a VISTA trust is under a duty to retain the shares even in circumstances where a prudent businessman would dispose of them in order to make a profit or avoid a loss. The intended trustee must be the holder of a trust licence from the BVI Financial Services Commission.
Prohibit the trustee from interfering in the management of the subject company while, if desired, permitting investigations to be made by an appointed enquirer on certain permitted grounds of complaint and from exercising its statutory right as contributory to petition the subject company into bankruptcy. This has made VISTA trusts popular, in the context of securitisations, for the holding of shares in special purpose vehicles (SPVs).
Specify how voting rights attaching to the subject company's shares may be exercised for the appointment of directors and therefore to establish "Office of Director Rules''. This provides a useful way in which settlors may retain control and management of BVI companies settled into trust while still having the benefit of transferring the asset into trust.
The residence of trusts is not significant from a fiscal point of view in the absence of any taxation of income, gains or assets held by contributions to or distributions from a trust. Therefore, there is no BVI tax concept of the residence of a domestic or foreign trust.
However, the BVI court will have jurisdiction over any trust if, among other things:
It has assets within the jurisdiction.
Any corporate trustee is incorporated or registered to do business in the BVI.
The administration of the trust is carried on in the BVI.
The trustee of any trust is resident in the BVI (there is no statutory or judicial definition of residence in this context).
Residence may be relevant for licensing, for example, since the carrying on of trust business (including professional trusteeship of trusts) by a company, requires a licence from the BVI Financial Services Commission to the extent that it is carried on in or from within the BVI and is not exempted. BVI business companies which carry on such business are deemed to do so in or from within the BVI.
The trusteeship of bare trusts is exempt from this requirement and a BVI business company may also obtain exemption by being incorporated as or converting to a private trust company. This is possible so long as it:
Contains a statement in its memorandum of objects that it is a private trust company and contains the designation PTC immediately before the words or letters indicating limited liability in its name.
Refrains from conducting any business other than trust business or soliciting trust business from the public.
Has a registered agent which is the holder of a Class I trust licence from the BVI Financial Services Commission.
There are also restrictions on its capacity to charge for its services.
The BVI recognises trusts that are governed by other jurisdictions laws and are created for foreign persons. The English Recognition of Trusts Act 1987, which gives effect to the HCCH Convention on the Law Applicable to Trusts and on their Recognition 1985 (Hague Trusts Convention) has been applied in its entirety to the BVI.
Most BVI trusts are created by or for foreign persons.
There are no BVI tax consequences (see Question 30, Residence of trusts).
Does the law provide specifically for the creation of non-charitable purpose trusts?
Does the law restrict the perpetuity period within which gifts in trusts must vest, or the period during which income may be accumulated?
Can the trust document restrict the beneficiaries' rights to information about the trust?
The law provides for the creation of non-charitable purpose trusts.
The purposes must:
Be specific, reasonable, possible and not contrary to law, morality or public policy.
Not be exclusively charitable.
An enforcer, who must be a party to the deed or consent in writing to act, must be appointed and a mechanism specified for appointing another enforcer where there is none or none willing and able to act. The trusteeship must include a designated person (that is, a BVI licensed trust company generally). There is no restriction on achieving benefit to particular persons or classes of persons under a BVI non-charitable purpose trust.
The settlor can specify a period of years of up to 100 years. Otherwise, the common law period of lives in being plus 21 years applies concerning the vesting requirement. The specified period of years will be the perpetuity period for the purposes of the rule against remoteness of vesting.
Accumulations may be made for the duration of the trust.
The rule against inalienability or perpetual duration, however, does not apply to charitable or non-charitable purpose trusts.
A beneficiary's right to information (whether he receives the benefit under a mere power or discretionary or fixed trust) is currently viewed as an aspect of the court's supervisory jurisdiction over trusts and, to that extent, may not be capable of being ousted or restricted.
However, VISTA trusts operate under a statutory regime which allows for modification of the equitable position governing what information concerning the trust may or must be provided and to whom (see Question 30, Types of trust and taxation).
Claims can be brought in relation to transfers intended to defeat spousal claims for financial provision (including transfers into trusts) by persons who have been BVI resident for at least two years continuously prior to the presentation of a petition claims (section 40, Matrimonial Proceedings and Property Act 1995).
Persons who are not resident for that period can be prevented from bringing claims under section 83A of the Trustee Act (see Question 24) on the grounds that they defeat foreign law claims arising out of personal relationships, including marriage or former marriage. Section 83A provides that the court cannot set aside lifetime transfers into BVI trusts on these grounds.
Civil partnership is not recognised in the BVI. In relation to claims from persons resident in jurisdictions where civil partnership is recognised, section 83A provides that the court cannot set aside transfers into trusts intended to defeat claims arising from a personal relationship where either a person (section 83A, Trustee Act):
Cohabits with another person.
Conducts himself in relation to the other so as to give rise in any jurisdiction to any rights, obligations or responsibilities analogous to those of husband and wife.
BVI has not enacted specific asset protection legislation and retains a provision that follows old English law (see the former section 172 of the English Law of Property Act 1925). This allows those prejudiced by voluntary conveyances made with intent to defraud creditors to have them avoided, irrespective of bankruptcy. However, although the vulnerability periods in respect of undue preferences and transactions at an undervalue in respect of BVI bankruptcies are strict (six months or two years in the case of connected persons) and foreign representatives of bankrupts are confined to common law rights of cross-border enforcement, the BVI does not offer much protection from the settlor’s point of view.
However, from a beneficiary point of view, a discretionary or fully protective trust may achieve real and legitimate benefits for an individual and his or her family, and both are possible under BVI law (see Question 24).
The two types of concurrent co-ownership recognised are:
Joint tenancy (where each joint owner owns all and the property of a deceased joint tenant is transferred by operation of law to the survivors).
Tenancy in common (that is, an ownership in shares, where the share devolves with the estate of the deceased tenant in common).
Joint tenancy operates outside estate administration and is not the concern of the deceased's personal representatives.
Both types of co-ownership may exist at law and in equity. A joint tenancy may be severed although certain forms of legal title may not (for example, legal title to registered shares in a BVI business company). It is not possible to separately convey one's share of a jointly held legal title to shares. However, an equitable interest can be freely assigned subject to the articles or any shareholders' agreement (preferably in signed writing in case section 9 of the English Statute of Frauds is, contrary to the generally held view, found to apply in the BVI).
The form of co-ownership of property has no BVI tax consequence.
There is no domestic concept of community of property between spouses. Civil partnerships are not recognised in the BVI (see Question 24, Civil partners).
In relation to the recognition of rights in persons domiciled outside the BVI in matters of succession, BVI conflicts rules will give effect to spousal and cohabitees' rights under the law of domicile at death in relation to movables. It is unclear whether the same would be true of civil partners' rights. As regards immovable property in the BVI, community rights would not be recognised in any of these categories as BVI domestic law would apply and does not recognise this concept.
There is currently no domestic recognition of same-sex relationships. Owing to the public policy questions which the public endorsement of such relationships may raise, it is currently unclear whether recognition or effect will be given to the provisions of foreign law that would otherwise be applicable under BVI conflict of law rules which do recognise such relationships (or rights arising from them).
Where any such questions arise in the context of the administration of the BVI situated estate of a deceased person, direction should be sought from the BVI court.
Marriage is the consensual union of a man and woman of marrying age.
Divorce is the dissolution of marriage other than on death and may for some purposes include annulment.
A person is adopted if made the subject of a court order under the Adoption of Children Act, Cap 269, under which the rights and responsibilities of parenthood are transferred from the natural parents or lawful guardian to another or others.
An individual is regarded as legitimate if his parents were married to each other when he was born. The Legitimacy Act, Cap 271 also provides that someone whose parents were not married to each other when he was born is legitimated on their subsequent marriage if the child's father was domiciled in the BVI at the time of the marriage (unless either of the parents was married to someone else when he was born).
Not applicable (see Question 38).
A person under the age of 18 years is a minor. A minor's interest on intestacy will be held on statutory trusts until they are 18, and will require the appointment of two administrators. Generally, there is no bar on a minor's owning property. However, it may be unwise to put property (such as shares) into a minor's name since a minor may not be bound by any obligations which attach to them. It may also render the shares effectively inalienable by sale since a minor cannot give a valid receipt. A minor may not be director of a BVI business company.
If a BVI person subject to the jurisdiction of the BVI court loses capacity, the Mental Health Act, Cap 191 establishes a regime for the management of that person's affairs through the appointment of a receiver.
As regards loss of capacity by a person not subject to the jurisdiction of the court, the Mental Health Act allows for the transfer of shares in BVI business companies into the name of a person appointed under foreign law to manage the affairs of a patient on the grounds of mental incapacity. It is not clear that this will cover a person appointed out of court under foreign law under a power of attorney even if enduring or lasting.
Currently, there are no published proposals for reform in this area.
Maintained by the BVI Financial Services Commission and covering all financial services and fiduciary legislation. It is well maintained and up-to-date.
Privately maintained free online resource of material going beyond financial services and fiduciary legislation.
Qualified. England and Wales, 1988 (non-practising); Cayman Islands, 2009 (non-practising); British Virgin Islands, 2010
Areas of practice. Trusts; private client; trusts litigation; wills and estates (both contentious and non-contentious).