Hong Kong: Hong Kong Modernisation Of Trust Law Long Overdue

Last Updated: 12 May 2014
Article by Alfred Ip and Scherzade Burden

The New Trustee Ordinance (the "Ordinance") came into effect on 1st December 2013. A summary of major changes are as follows:-

1. Statutory Duty Of Care

With the new s3A of the Ordinance, the Trustee who holds out as having any special knowledge or experience or is acting in the course of his business or profession would be reasonably expected to have such special knowledge or experience.

For professional Trustees, they are now expected to exercise their care and skill with their special knowledge or experience.

2. Restriction on Exoneration Clause

The new s41W of the Ordinance restricts a professional trustee from exonerating himself from liability for a breach of trust arising from his own fraud, wilful misconduct or gross negligence, or allowing himself to be indemnified under those circumstances. Any clause in the trust to such effect will be construed as invalid.

3. Settlor's Reserved Powers to Invest

s41X allows the settlor to reserve the power of investment or asset management under the trust. A Trustee who acts in accordance with the exercise of the power or function is not in breach of the trust.

In the past such reserved power may invalidate the trust as the settlor may be regarded as having full control over the assets under the trust. At the same time, losing control over the trust assets is one of the main deterrents for a lot of high net worth individuals to set up a trust.

4. Forced Heirship Provisions

s41Y of the Ordinance provides that forced heirship rules, which are commonly found in continental European countries such as France, Italy and Germany, to name a few, and China, have no effect on trust created in Hong Kong. In other words, people from those countries or other countries with forced heirship rules can inject assets into a trust set up in Hong Kong without worrying about the same being attacked after they passed away.

5. No rule against Perpetuities

The accumulation period of 80 years has been abolished, which means theoretically a trust can carry on forever until it is terminated.

6. Simplified Procedure to Remove Trustee

New s40A allows beneficiaries to give a written direction to a trustee directing the trustee to retire the trust, and such trustee must make a deed to that effect upon certain criteria as set out in ss(3) being complied with. New s40B applies when the trustee becomes mentally incapacitated.

7. Trustee's Powers of Delegation

The new Part IVA authorises the delegation of 'delegable functions' to certain persons, bringing Hong Kong laws into a comparably similar position with the UK and Singapore.

Trustees are now empowered to appoint agents, with certain restrictions on the number of agents and delegable functions. The terms of such appointments must not contravene s41E(3), which includes sub-delegation, restriction on liability and conflicts of interest.

When trustees delegate asset management functions, the trustee is required to provide a written investment policy statement. Trustees can only appoint professional nominees and custodians for asset management functions. Trustees are expected to review the performance of the agent, nominee or custodian regularly. If this requirement is not met then the Trustee fails to satisfy the statutory duty of care and therefore cannot be exempt from liability.


Hong Kong's trust law is based mainly on the common law. It is complemented by the Trustee Ordinance and the Perpetuities and Accumulations Ordinance. Those Ordinances, which were enacted in 1934 and 1970 respectively, have not been substantially reviewed or modified since that time. It was therefore high time that Hong Kong Trust law was reviewed and any antiquated provisions changed.

The major changes have been outlined above.

The Trust (Amendment) Ordinance 2013 is the product of four long years' work between Hong Kong Trustees' Association (HKTA), the Society of Trusts and Estates Practitioners (STEP) and the Financial Services and Treasury Bureau.

The primary aim of the new Trust law is to boost the competitiveness of the Hong Kong trust services industry and make it a stronger competitor against jurisdictions such as Singapore. The government hopes that by bringing the law largely into line with Singapore and the UK that settlors, particularly those from civil law jurisdictions, will be more attracted to set up trusts in Hong Kong. In time the government hopes that if this does indeed happen then it will increase Hong Kong's stature as a strong international asset management centre.

Aside from the politico-economic reasons for the government modernising Hong Kong Trust law, it will also afford greater protection to beneficiaries since there is now stronger statutory control upon Trustees who previously were able to limit their liability through various clauses in the Trust Deed. The new law severely limits Trustees from limiting their liability in the Deed.

Trusts Practitioners will be relieved that the law has finally been enacted. Many consider it to have been a long time coming. It will now be interesting to see if in the years to come, the government's hopes for Hong Kong to become the asset management centre of choice for settlors are realised.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.