The Court for Trusts and Fiduciary Relations

NON CONTENTIOUS PROCEEDINGS

The measures referred to in Articles 53 and 54 and 55, paragraph 1, of Law no. 42 of 1 March 2010 on trusts and in Article 16 of Law no. 43 of 1 March 2010 on fiduciary agreements are requested to the President of the Court for Trusts by means an application (“ricorso”).  See also delegated decree no. 128 of 30 September 2013.

After collecting summary information in an ad-hoc hearing and having heard, if deemed necessary, the person against whom the measure is requested or other interested parties, the President decides on the application.

The President decides by means of an immediately enforceable decree. Recent case-law, however, shows that, in case of complexity of the subject matter, the President may choose to assign the case to a panel composed by himself and one or more judge(s) of the Court. In such case the Court decides by means of an order, so as to better illustrate the reasons of the measure adopted.

Decrees or orders can be appealed. The relevant procedure is regulated by Article 11 paragraphs 2 and 3 of Delegated Decree no. 128 of 30 September 2013. The appeal if authorised by the President of the Court and is entrusted to a panel composed of three Judges. The procedure governing first instance proceedings before the Court apply to the appeal judgement, as far as applicable.  

Which measures can be requested to the President of the Court?

Generally, the trustee can apply to the Court for Trusts whenever he/she has doubts on the performance of acts related to his/her office. Given its high technical competence in the field, the Court adopts a decision and gives the trustee any appropriate directions for the execution of his/her tasks. Therefore, the Court for Trusts is an institutional body assisting those who decide to exercise the delicate office of trustee (Article 53, paragraph 5 of Law no. 42/2010).

Under Article 53 of Law no. 42 of 1 March 2010 ("Law on trusts"), the President, to whom the trustee, beneficiary, protector or any other interested person has applied, may adopt a measure concerning:

- the fulfilment of an obligation or the exercise of a power of the office of trustee or protector.

- the replacement of the trustee or of the protector who has violated the law or the trust instrument. The replacement may be requested to the President also for reasons of expediency or when the trustee does not fulfil the requirements envisaged by Article 18 of Law no. 42 of 1 March 2010.

- the appointment of a new or additional trustee or protector. The trustee shall resort to the President in case of absence of the protector when the law expressly requires such presence.

- trust fund management and disposition acts.

- the protection of the interests of the beneficiaries or of the purpose of the trust, when the trustee is in a position of conflict of interests.

A valuable element of San Marino Trust Law is to be found in Article 53, paragraph 4. The trustee can apply to the Court:

- to be authorised to carry out any  useful action that is not included among his/her powers;

- to obtain the confirmation of an action already carried out;

- to introduce changes to the trust instrument that have become necessary or appropriate.

In these cases, the Court's intervention is a sort of umbrella under which the trustee can find shelter from possible complaints by the settlor, the beneficiaries or third parties.

In which other circumstances of non-contentious proceedings can the President of the Court be applied to?

According to Article 54 of Law 42/2010, the beneficiary or the protector who has reason to believe that the trustee is going to fail to perform an act within his/her duties, or he/she is going to perform an act violating the San Marino law on trusts or the trust instrument, can apply to the President of the Court to obtain the enforcement of appropriate measures.

According to the second paragraph of the article above, the effects of the precautionary measure adopted by the Judicial Authority are not suspended when proceedings on the merits have been initiated.

Non-contentious proceedings also apply to segregation and recovery actions:

• Segregation action: Such action is available if the trustee has mixed his/her assets with assets belonging to the trust of which he/she is the trustee. The trustee who is not involved in the mixing (when the office is held by more than one trustee), the protector or any beneficiary can apply to the Court to request the segregation of the assets.  In addition to the segregation, compensation for damages may be claimed. Such action is not subject to any limitation period.

• Recovery action: if the trustee has disposed of trust assets a) by violating the provisions of the trust instrument, b) without price or, c) with inadequate price, any other trustee not involved in the action (when the office is held by more than one trustee), the protector or any beneficiary are entitled to claim that the successor returns the assets received, unless the successor was not aware of the violation. In addition to the return of assets, the parties entitled may claim compensation for damages. Such action is subject to a limitation period of ten years.

IMPORTANT! Notification regime.

According to Art. 6 of Delegated Decree no. 128/2013, the President decides on notification modalities. This means that, apart from the ordinary procedure, the President of the Court may order - for example - that the notification be made by means of a telegram with acknowledgement of receipt or by international carrier with the proof of receipt as an attachment, or by registered letter with acknowledgement of receipt or in other appropriate ways.

When are notifications served under Art. 6 of Delegated Decree no. 128/2013?

a. When the person to be served is not resident or domiciled in the Republic of San Marino.

b. When this is necessary for reasons of greater promptness, confidentiality or to protect the dignity of the person.

The President of the Court may order that the notification be served according to the specific modalities of the State in which the notification shall be served.

The parties instituting the proceedings are considered as having an address for service at the office of their lawyer in San Marino. Notifications served at this address will have the same effect as notifications served personally to the party concerned.

Which are the costs of non-contentious proceedings?

The costs of non-contentious proceedings are summarised in the table below. For any further information, we suggest to read the page "Fees and cost" on the Court's website.

 Table 1 – Fees for non-contentious proceedings

Non-contentious proceedings also apply to fiduciary agreements.

After collecting any necessary summary information, the Court for Trusts decides, by means of a reasoned decree, on any appeal brought by an interested party.

By means of a decree, the Court may:

- Give instructions to the trustee.

- Amend the provisions of the agreement, after assessing the appropriateness of the amendments, integration or cancellation of the provisions, in the light of the appropriation programme.

- In the absence of the settlor and of persons designated by him, or in case of their inaction, the Court may take measures corresponding to their powers with reference to the transfer to a different person of the benefit and burden of the agreement, free of any and all claims by the trustee. The Court itself may adopt measures concerning all acts and execute all documents  in connection with the dedicated patrimony, as an exception to the provisions of ius commune.