Trusts (Jersey)
Law 1984
A LAW to make provision with regard to trusts, trustees and persons
interested under trusts and for connected purposes
Commencement
[see endnotes]
PART 1
general
1 Interpretation
(1) In
this Law, unless the context otherwise requires –
“beneficiary” means
a person entitled to benefit under a trust or in whose favour a discretion to
distribute property held on trust may be exercised;
“breach of trust” means
a breach of any duty imposed on a trustee by this Law or by the terms of the trust;
“corporate trustee” means
a trustee which is a corporation;
“corporation” means
a body corporate wherever incorporated;
“court” means the
Inferior Number of the Royal Court;
“enforcer” shall be
construed in accordance with Article 13;
“foreign trust” means
a trust whose proper law is the law of some jurisdiction other than Jersey;
“insurance” includes
assurance;
“interdict” means a person,
other than a minor, who under the law of Jersey or under the law of the person’s
domicile does not have legal capacity;
“interest of a beneficiary”
means the beneficiary’s interest under a trust and references to the
beneficiary’s interest have a corresponding meaning;
“Jersey trust” means
a trust whose proper law is the law of Jersey;
“minor” means a person
who under the law of Jersey or under the law of the person’s domicile has
not reached the age of legal capacity;
“officer” means –
(a) in the case of a foundation, a member of the
council of the foundation;
(b) in the case of an incorporated limited
partnership, a general partner or a limited partner who is participating in the
management of the partnership;
(c) in the case of any corporation other than
those mentioned in sub-paragraph (a) and (b), a director, manager,
secretary or other similar officer of the corporation;
(d) in the case of a limited liability
partnership, a partner;
(e) in the case of a separate limited
partnership or any partnership with a separate legal personality, except a
limited liability partnership, a general partner or a limited partner who is
participating in the management of the partnership; or
(f) in any case other than those mentioned
in sub-paragraphs (a), (b), (c), (d) and (e), any other person purporting
to act in a capacity described in any of sub-paragraphs (a), (b), (c), (d)
and (e);
“personal representative”
means the executor or administrator for the time being of a deceased person
and, in the context of a Jersey trust, includes the principal heir;
“professional trustee”
means a trustee who is registered under Article 9 of the Financial
Services (Jersey) Law 1998[1], by the Jersey Financial
Services Commission, to carry on trust company business within the meaning of
Article 2(3) of that Law;
“property” means
property of any description wherever situated, and, in relation to rights and
interests includes those rights and interests whether vested, contingent,
defeasible or future;
“purpose” means any
purpose whatsoever, whether or not –
(a) involving
the conferral of any benefit on any person; or
(b) consuming
or capable of consuming the income or capital of the trust,
including without limitation the acquisition, holding, ownership,
management or disposal of property and the exercise of functions;
“settlor” means a person
who provides trust property or makes a testamentary disposition on trust or to
a trust;
“terms of a trust” means
the written or oral terms of a trust, and also means any other terms made
applicable by the proper law;
“trust”
includes –
(a) the
trust property; and
(b) the
rights, powers, duties, interests, relationships and obligations under a trust;
“trust property” means
the property for the time being held in a trust;
“unit trust” means
any trust established for the purpose, or having the effect, of providing, for
persons having funds available for investment, facilities for the participation
by them as beneficiaries under the trust, in any profits or income arising from
the acquisition, holding, management or disposal of any property whatsoever.[2]
(2) This
Law shall not be construed as a codification of laws regarding trusts, trustees
and persons interested under trusts.
2 Existence
of a trust
A trust exists where a person (known as a trustee) holds or has
vested in the person or is deemed to hold or have vested in the person property
(of which the person is not the owner in the person’s own
right) –
(a) for
the benefit of any person (known as a beneficiary) whether or not yet
ascertained or in existence;
(b) for
any purpose which is not for the benefit only of the trustee; or
(c) for
such benefit as is mentioned in sub-paragraph (a) and also for any such
purpose as is mentioned in sub-paragraph (b).
3 Recognition
of a trust by the law of Jersey
Subject to this Law, a trust shall be recognized by the law of Jersey
as valid and enforceable.
4 Proper law of a trust
(1) Subject
to Article 41, the proper law of a trust shall be the law of the
jurisdiction –
(a) expressed
by the terms of the trust as the proper law; or failing that
(b) to
be implied from the terms of the trust; or failing either
(c) with
which the trust at the time it was created had the closest connection.[3]
(2) The
references in paragraph (1) to “failing that” or
“failing either” include references to cases –
(a) where
no law is expressed or implied under sub-paragraph (a) or (b) of that paragraph;
and
(b) where
a law is so expressed or implied, but that law does not provide for trusts or
the category of trusts concerned.[4]
(3) In
ascertaining, for the purpose of paragraph (1)(c), the law with which a
trust had the closest connection, reference shall be made in particular
to –
(a) the
place of administration of the trust designated by the settlor;
(b) the
situs of the assets of the trust;
(c) the
place of residence or business of the trustee;
(d) the
objects of the trust and the places where they are to be fulfilled.[5]
5 Jurisdiction
of court
The court has jurisdiction where –
(a) the
trust is a Jersey trust;
(b) a
trustee of a foreign trust is resident in Jersey;
(c) any
trust property of a foreign trust is situated in Jersey; or
(d) administration
of any trust property of a foreign trust is carried on in Jersey.
PART 2
PROVISIONS APPLICABLE ONLY TO A JERSEY TRUST
6 Application
of Part 2
This Part of this Law shall apply only to a Jersey trust.
Creation, validity and duration of Jersey
trusts
7 Creation
of a trust
(1) Subject
to paragraph (3), a trust may come into existence in any manner.
(2) Without
prejudice to the generality of paragraph (1), a trust may come into
existence by oral declaration, or by an instrument in writing (including a will
or codicil) or arise by conduct.
(3) A
unit trust may be created only by an instrument in writing.
8 Property
which may be placed in a trust
Subject to Article 11(2) –
(a) any
property may be held by or vested in a trustee upon trust; and
(b) a
trustee may accept from any person property to be added to the trust property.
9 Extent
of application of law of Jersey to creation, etc. of a trust[6]
(1) Subject
to paragraph (3), any question concerning –
(a) the
validity or interpretation of a trust;
(b) the
validity or effect of any transfer or other disposition of property to a trust;
(c) the
capacity of a settlor;
(d) the
administration of the trust, whether the administration be conducted in Jersey
or elsewhere, including questions as to the powers, obligations, liabilities
and rights of trustees and their appointment or removal;
(e) the
existence and extent of powers, conferred or retained, including powers of
variation or revocation of the trust and powers of appointment and the validity
of any exercise of such powers;
(f) the
exercise or purported exercise by a foreign court of any statutory or
non-statutory power to vary the terms of a trust; or
(g) the
nature and extent of any beneficial rights or interests in the property,
shall be determined in accordance with the law of Jersey and no rule
of foreign law shall affect such question.[7]
(2) Without
prejudice to the generality of paragraph (1), any question mentioned in
that paragraph shall be determined without consideration of whether or
not –
(a) any
foreign law prohibits or does not recognise the concept of a trust; or
(b) the
trust or disposition avoids or defeats rights, claims, or interests conferred
by any foreign law upon any person by reason of a personal relationship or by
way of heirship rights, or contravenes any rule of foreign law or any foreign
judicial or administrative order or action intended to recognize, protect,
enforce or give effect to any such rights, claims or interests.[8]
(2A) Subject
to paragraph (2), paragraph (1) –
(a) does
not validate any disposition of property which is neither owned by the settlor
nor the subject of a power of disposition vested in the settlor;
(b) does
not affect the recognition of the law of any other jurisdiction in determining
whether the settlor is the owner of any property or the holder of any such
power;
(c) is
subject to any express provision to the contrary in the terms of the trust or
disposition;
(d) does
not, in determining the capacity of a corporation or other person having legal
personality, affect the recognition of the law of its place of incorporation or
establishment, as the case may be;
(e) does
not affect the recognition of the law of any other jurisdiction prescribing the
formalities for the disposition of property;
(f) does
not validate any trust or disposition of immovable property situate in a
jurisdiction other than Jersey which is invalid under the law of that
jurisdiction; and
(g) does
not validate any testamentary disposition which is invalid under the law of the
testator’s domicile at the time of his death. [9]
(3) The
law of Jersey relating to légitime shall not apply to the determination
of any question mentioned in paragraph (1) unless the settlor is domiciled
in Jersey.[10]
(3A) The law of
Jersey relating to conflict of laws (other than this Article) shall not apply
to the determination of any question mentioned in paragraph (1).[11]
(4) No –
(a) judgment
of a foreign court; or
(b) decision
of any other foreign tribunal (whether in an arbitration or otherwise),
with respect to a trust shall be enforceable, or given effect, to
the extent that it is inconsistent with this Article, irrespective of any
applicable law relating to conflict of laws.[12]
(5) The
rule donner et retenir ne vaut shall not apply
to any question concerning the validity, effect or administration of a trust,
or a transfer or other disposition of property to a trust.
(6) In
this Article –
“foreign” refers to any jurisdiction other than Jersey;
“heirship rights” means rights, claims or interests in,
against or to property of a person arising or accruing in consequence of his or
her death, other than rights, claims or interests created by will or other
voluntary disposition by such person or resulting from an express limitation in
the disposition of his or her property;
“légitime” and
“donner et retenir ne vaut” have
the meanings assigned to them by Jersey customary law;
“personal relationship” includes the situation where
there exists, or has in the past existed, any of the following
relationships –
(a) any
relationship between a person and the settlor or a beneficiary, by blood,
marriage, civil partnership or adoption (whether or not the marriage, civil
partnership or adoption is recognised by law);
(b) any
arrangement between a person and the settlor or a beneficiary such as to give
rise in any jurisdiction to any rights, obligations or responsibilities
analogous to those of parent and child, spouses or civil partners; or
(c) any
relationship between –
(i) a person who has
a relationship mentioned in either of paragraphs (a) and (b) with the
settlor or a beneficiary, and
(ii) a third person
who does not have a relationship mentioned in either of paragraphs (a) and
(b) with the settlor or a beneficiary.[13]
(7) Despite
Article 59, this Article applies to trusts whenever constituted or
created.
9A Powers
reserved by settlor[14]
(1) The
reservation or grant by a settlor of a trust of –
(a) any
beneficial interest in the trust property; or
(b) any
or all of the powers mentioned in paragraph (2),
shall not affect the validity of the trust nor delay the trust
taking effect and in construing the terms of the trust, if the trust is not
expressed to be a will or testament or to come into effect upon the death of
the settlor, it shall be presumed that the trust shall take immediate effect,
except as otherwise expressed.[15]
(2) The
powers are –
(a) to
revoke, vary or amend the terms of a trust or any trusts or powers arising
wholly or partly under it;
(b) to advance,
appoint, pay or apply income or capital of the trust property or to give
directions for the making of such advancement, appointment, payment or
application;
(c) to
act as, or give directions as to the appointment or removal of –
(i) an officer of any
corporation, or
(ii) an officer of a
limited liability partnership, separate limited partnership or any other
partnership having separate legal personality,
in which the trust holds an interest whether or not such interest in
the corporation or partnership is wholly, partly, directly or indirectly held
by the trust;
(d) to
give directions to the trustee in connection with the purchase, retention, sale,
management, lending, pledging or charging of the trust property or the exercise
of any powers or rights arising from such property;
(e) to
appoint or remove any trustee, enforcer or beneficiary, or any other person who
holds a power, discretion or right, or who acts in connection with the trust or
in relation to trust property;
(f) to
appoint or remove an investment manager or investment adviser;
(g) to
change the proper law of the trust;
(h) to
restrict the exercise of any powers or discretions of a trustee by requiring
that they shall only be exercisable with the consent of the settlor or any
other person specified in the terms of the trust.[16]
(3) Where
a power mentioned in paragraph (2) has been reserved or granted by the
settlor, a trustee who acts in accordance with the exercise of the power is not
acting in breach of trust.
(3A) The reservation
or grant by a settlor of a trust of –
(a) any beneficial interest
in the trust property; or
(b) any or all of the
powers mentioned in paragraph (2),
shall not of itself constitute the settlor or the person to whom the
power or beneficial interest is granted, a trustee.[17]
(4) The
States may make Regulations amending paragraph (2).
10 Beneficiaries of
a trust
(1) A
beneficiary shall be –
(a) identifiable
by name; or
(b) ascertainable
by reference to –
(i) a class, or
(ii) a relationship to
some person whether or not living at the time of the creation of the trust or
at the time which under the terms of the trust is the time by reference to
which members of a class are to be determined.
(2) The
terms of a trust may provide for the addition of a person as a beneficiary or
the exclusion of a beneficiary from benefit.
(3) Subject
to Article 30(10), the terms of a trust may impose upon a beneficiary an
obligation as a condition for benefit.[18]
(4) [19]
(5) [20]
(6) [21]
(7) [22]
(8) [23]
(9) [24]
(10) The
interest of a beneficiary shall constitute movable property.
(11) Subject
to the terms of the trust, a beneficiary may sell, pledge, charge, transfer or
otherwise deal with his or her interest in any manner.
(12) A
settlor or a trustee of a trust may also be a beneficiary of the trust.
10A Disclaimer of
interest[25]
(1) Despite
the terms of the trust, a beneficiary may disclaim, either permanently or for
such period as he or she may specify, the whole or any part of his or her
interest under a trust if he or she does so in writing.
(2) Paragraph (1)
applies whether or not the beneficiary has received any benefit from the
interest.
(3) Subject
to the terms of the trust, if the disclaimer so provides it may be revoked in
accordance with its terms.
11 Validity of a Jersey
trust
(1) Subject
to paragraphs (2) and (3), a trust shall be valid and enforceable in
accordance with its terms.
(2) Subject
to Article 12, a trust shall be invalid –
(a) to
the extent that –
(i) it purports to do
anything the doing of which is contrary to the law of Jersey,
(ii) it purports to
confer any right or power or impose any obligation the exercise or carrying out
of which is contrary to the law of Jersey,
(iii) it purports to apply
directly to immovable property situated in Jersey, or
(iv) it is created for a
purpose in relation to which there is no beneficiary, not being a charitable
purpose;
(b) to
the extent that the court declares that –
(i) the trust was
established by duress, fraud, mistake, undue influence or misrepresentation or
in breach of fiduciary duty,
(ii) the trust is
immoral or contrary to public policy, or
(iii) the terms of the trust
are so uncertain that its performance is rendered impossible.[26]
(3) Where
a trust is created for 2 or more purposes of which some are lawful and others are
unlawful –
(a) if
those purposes cannot be separated the trust shall be invalid;
(b) where
those purposes can be separated the court may declare that the trust is valid
as to the purposes which are lawful.
(4) Where
a trust is partially invalid the court may declare what property is trust
property, and what property is not trust property.
(5) Where
paragraph (2)(a)(iii) applies, any person in whom the title to such
immovable property is vested shall not be, and shall not be deemed to be, a
trustee of such immovable property.
(6) Property
as to which a trust is wholly or partially invalid shall, subject to paragraph (5)
and subject to any order of the court, be held by the trustee in trust for the
settlor absolutely or if the settlor is dead for his or her personal
representative.
(7) In paragraph (6)
“settlor” means the particular person who provided the property as
to which the trust is wholly or partially invalid.
(8) An
application to the court under this Article may be made by any person referred
to in Article 51(3).
12 Trusts for non-charitable purposes[27]
A trust shall not be invalid to any extent by reason of Article 11(2)(a)(iv)
if the terms of the trust provide for the appointment of an enforcer in
relation to its non-charitable purposes, and for the appointment of a new
enforcer at any time when there is none.
13 Enforcers[28]
(1) It
shall be the duty of an enforcer to enforce the trust in relation to its
non-charitable purposes.
(2) The
appointment of a person as enforcer of a trust in relation to its
non-charitable purposes shall not have effect if the person is also a trustee
of the trust.
(3) Article 21(4)
shall apply to an enforcer as if the reference in sub-paragraph (b) of
that paragraph to “a trustee” were a reference to “an
enforcer” and the references in that sub-paragraph to the “trustee’s
trusteeship” and “such trusteeship” were both references to the
“enforcer’s appointment”.
14 Resignation or removal of enforcer[29]
(1) Subject
to paragraph (3), an enforcer may resign his or her office by notice in
writing delivered to the trustee.
(2) A
resignation takes effect on the delivery of notice in accordance with paragraph (1).
(3) A
resignation given in order to facilitate a breach of trust shall be of no
effect.
(4) An
enforcer shall cease to be enforcer of the trust in relation to its
non-charitable purposes immediately upon –
(a) the enforcer’s removal from office by
the court;
(b) the enforcer’s resignation becoming
effective;
(c) the coming into effect
of a provision in the terms of a trust under which the
enforcer is removed from office or otherwise
ceases to hold office; or
(d) the
enforcer’s appointment as a trustee of the trust.
15 Duration of a Jersey
trust[30]
(1) Unless
its terms provide otherwise, a trust may continue in existence for an unlimited
period.
(2) No
rule against perpetuities or excessive accumulations shall apply to a trust or
to any advancement, appointment, payment or application of assets from a trust.
(3) Except
where the terms of a trust provide to the contrary, any advancement,
appointment, payment or application of assets from that trust to another trust
shall be valid even if that other trust may continue after the date by which
the first trust must terminate.
Appointment, retirement and discharge of trustees
16 Number of
trustees[31]
(1) Subject
to the terms of the trust, a trust must have at least one trustee.
(2) A
trust shall not fail on grounds of having fewer trustees than required by this
Law or the terms of the trust.
(3) If
the number of trustees falls below the minimum number required by
paragraph (1) or, if greater, by the terms of the trust, the required
number of new trustees must be appointed as soon as practicable.
(4) While
there are fewer trustees than are required by the terms of the trust, the
existing trustees may only act for the purpose of preserving the trust
property.
17 Appointment out of court of new or additional trustee
(1) Paragraph
(1A) applies if –
(a) the
terms of a trust do not provide for the appointment of a new or additional
trustee;
(b) any
such terms providing for any such appointment have lapsed or failed; or
(c) the
person who has the power to make any such appointment is not capable of
exercising the power,
and there is no other power to make the appointment.[32]
(1A) A new or
additional trustee may be appointed by –
(a) the
trustees for the time being;
(b) the
last remaining trustee; or
(c) the
personal representative or liquidator of the last remaining trustee.[33]
(2) Subject
to the terms of the trust, a trustee appointed under this Article shall have
the same powers, discretions and duties and may act as if the trustee had been
originally appointed a trustee.
(3) A
trustee having power to appoint a new trustee who fails to exercise such power
may be removed from office by the court.
(4) On
the appointment of a new or additional trustee anything requisite for vesting
the trust property in the trustees for the time being of the trust shall be
done.
18 Prohibition of
renunciation after acceptance
(1) No person
shall be obliged to accept appointment as a trustee, but a person who knowingly
does any act or thing in relation to the trust property consistent with the
status of a trustee of that property shall be deemed to have accepted
appointment as a trustee.
(2) A person
who has not accepted and is not deemed to have accepted appointment as a
trustee may disclaim such appointment within a reasonable period of time after
becoming aware of it by notice in writing to the settlor or to the trustees.
(3) If
the settlor is dead or cannot be found and there are no other trustees a person
to whom paragraph (2) applies may apply to the court for relief from the person’s
appointment and the court may make such order as it thinks fit.
19 Resignation or
removal of trustee
(1) Subject
to paragraph (3), a trustee, not being a sole trustee, may resign his or
her office by notice in writing delivered to his or her co-trustees.
(2) A
resignation takes effect on the delivery of notice in accordance with paragraph (1).
(3) If
two or more trustees purport to resign simultaneously, the effect of which
would mean that there would be no trustee, the resignations shall have no
effect.[34]
(4) A
trustee shall cease to be a trustee of the trust immediately upon –
(a) the
trustee’s removal from office by the court; or
(b) the
trustee’s resignation becoming effective; or
(c) the
coming into effect of a provision in the terms of a trust under which the
trustee is removed from office or otherwise ceases to hold office.
(5) A person
who ceases to be a trustee under this Article shall concur in executing all
documents necessary for the vesting of the trust property in the new or
continuing trustees.
20 [35]
Duties of trustees
21 Duties of trustee
(1) A
trustee shall in the execution of his or her duties and in the exercise of his
or her powers and discretions –
(a) act –
(i) with due
diligence,
(ii) as would a
prudent person,
(iii) to the best of the
trustee’s ability and skill; and
(b) observe
the utmost good faith.
(2) Subject
to this Law, a trustee shall carry out and administer the trust in accordance
with its terms.
(3) Subject
to the terms of the trust, a trustee shall –
(a) so
far as is reasonable preserve the value of the trust property;
(b) so
far as is reasonable enhance the value of the trust property.[36]
(4) Except –
(a) with
the approval of the court; or
(b) as
permitted by this Law or expressly provided by the terms of the trust,
a trustee shall not –
(i) directly
or indirectly profit from the trustee’s trusteeship;
(ii) cause
or permit any other person to profit directly or indirectly from such
trusteeship; or
(iii) on
the trustee’s own account enter into any transaction with the trustees or
relating to the trust property which may result in such profit.
(5) A
trustee shall keep accurate accounts and records of the trustee’s
trusteeship.
(6) A
trustee shall keep trust property separate from his or her personal property
and separately identifiable from any other property of which he or she is a
trustee.
(7) A
trustee of a trust for non-charitable purposes shall, at any time when there is
no enforcer in relation to them, take such steps as may be necessary to secure
the appointment of a new enforcer.[37]
(8) Where
the trustee of a trust for non-charitable purposes has reason to believe that
the enforcer in relation to them is unwilling or refuses to act, or is unfit to
act or incapable of acting, the trustee shall apply to the court for the
removal of the enforcer and the appointment of a replacement.[38]
22 Duty of
co-trustees to act together
(1) Subject
to the terms of the trust, where there is more than one trustee all the
trustees shall join in performing the trust.
(2) Subject
to paragraph (3), where there is more than one trustee no power or
discretion given to the trustees shall be exercised unless all the trustees
agree on its exercise.
(3) The
terms of a trust may empower trustees to act by a majority but a trustee who
dissents from a decision of the majority of the trustees may require the
trustee’s dissent to be recorded in writing.
23 Impartiality of
trustee
Subject to the terms of the trust, where there is more than one
beneficiary, or more than one purpose, or at least one beneficiary and at least
one purpose, a trustee shall be impartial and shall not execute the trust for
the advantage of one at the expense of another.[39]
General powers of trustees
24 Powers of trustee
(1) Subject
to the terms of the trust and subject to the trustee’s duties under this Law,
a trustee shall in relation to the trust property have all the same powers as a
natural person acting as the beneficial owner of such property.
(2) A
trustee shall exercise the trustee’s powers only in the interests of the
beneficiaries and in accordance with the terms of the trust.
(3) The
terms of a trust may require a trustee to obtain the consent of some other person
before exercising a power or a discretion.
(4) A person
who consents as provided in paragraph (3) shall not by virtue of so doing
be deemed to be a trustee.
25 Delegation by
trustee
(1) Subject
to the terms of the trust, a trustee may delegate the execution or exercise of
any of his or her trusts or powers (both administrative and dispositive) and
any delegate may further so delegate any such trusts or powers.[40]
(2) Except
where the terms of the trust specifically provide to the contrary, a
trustee –
(a) may
delegate management of trust property to and employ investment managers whom
the trustee reasonably considers competent and qualified to manage the
investment of trust property; and
(b) may
employ accountants, advocates, attorneys, bankers, brokers, custodians,
investment advisers, nominees, property agents, solicitors and other
professional agents or persons to act in relation to any of the affairs of the
trust or to hold any of the trust property.
(3) A
trustee shall not be liable for any loss to the trust arising from a delegation
or appointment under this Article who, in good faith and without neglect, makes
such delegation or appointment or permits the continuation thereof.[41]
(4) A
trustee may authorize a person referred to in paragraph (2) to retain any
commission or other payment usually payable in relation to any transaction.
26 Remuneration and
expenses of trustee
(1) Unless
authorized by –
(a) the
terms of the trust;
(b) the
consent in writing of all of the beneficiaries; or
(c) any
order of the court,
a trustee shall not be entitled to remuneration for his or her
services.
(1A) Despite
paragraph (1), where the terms of a trust are silent as to his or her
remuneration, a professional trustee shall be entitled to reasonable
remuneration for services that the professional trustee provides after this
paragraph comes into force.[42]
(2) A
trustee may reimburse himself or herself out of the trust for or pay out of the
trust all expenses and liabilities reasonably incurred in connection with the
trust.[43]
27 Power to
appropriate
Subject to the terms of the trust, a trustee may, without the
consent of any beneficiary, appropriate trust property in or towards
satisfaction of the interest of a beneficiary in such manner and in accordance
with such valuation as the trustee thinks fit.
28 Corporate trustee
acting by resolution
A corporate trustee may –
(a) act
in connection with a trust by a resolution of such corporate trustee or of its
board of directors or other governing body; or
(b) by
such a resolution appoint one or more of its officers or employees to act on
its behalf in connection with the trust.
29 Disclosure[44]
(1) Subject
to any order of the court, the terms of a trust may –
(a) confer
upon any person a right to request the disclosure of information or a document concerning
the trust;
(b) determine
the extent of the right of any person to information or a document concerning
the trust; or
(c) impose
a duty upon a trustee to disclose information or a document concerning the
trust to any person.
(2) Subject
to the terms of the trust and to any order of the court –
(a) a
beneficiary under the trust not being a charity;
(b) a
charity which is referred to by name in the terms of the trust as a beneficiary
under the trust; or
(c) an
enforcer,
may request disclosure by the trustee of documents which relate to
or form part of the accounts of the trust.
(3) Subject
to any order of the court, a trustee may refuse to comply with –
(a) a
request for disclosure of information or a document concerning the trust under
paragraph (1)(a) or any document which relates to or forms part of the
accounts of the trust under paragraph (2); or
(b) any
other request for disclosure of information or a document concerning the trust,
where the trustee in the exercise of its discretion is satisfied
that it is in the interests of one or more of the beneficiaries, or the
beneficiaries as a whole, to refuse the request.
(4) Notwithstanding
paragraphs (1), (2) and (3), subject to the terms of the trust and to any
order of the court, a trustee shall not be required to disclose to any person
information or a document which –
(a) discloses
the trustee’s deliberations as to the manner in which the trustee has
exercised a power or discretion or performed a duty conferred or imposed upon
the trustee;
(b) discloses
the reason for any particular exercise of a power or discretion or performance
of a duty referred to in sub-paragraph (a), or the material upon which
such reason shall or might have been based; or
(c) relates
to the exercise or proposed exercise of a power or discretion, or the
performance or proposed performance of a duty, referred to in sub-paragraph (a).
(5) Notwithstanding
the terms of the trust, on the application of the trustee, an enforcer, a
beneficiary or, with leave of the court any other person, the court may make
such order as it thinks fit determining the extent to which any person may
request or receive information or a document concerning the trust, whether
generally or in any particular instance.
Liability for breach of trust
30 Liability for
breach of trust
(1) Subject
to this Law and to the terms of the trust, a trustee shall be liable for a
breach of trust committed by the trustee or in which the trustee has concurred.[45]
(2) A
trustee who is liable for a breach of trust shall be liable for –
(a) the
loss or depreciation in value of the trust property resulting from such breach;
and
(b) the
profit, if any, which would have accrued to the trust property if there had
been no such breach.[46]
(3) Where
there are 2 or more breaches of trust, a trustee shall not set off a gain from
one breach of trust against a loss resulting from another breach of trust.
(3A) A trustee who
resigns in order to facilitate a breach of trust shall be liable for that
breach as if he or she had not resigned.[47]
(4) A
trustee shall not be liable for a breach of trust committed prior to the
trustee’s appointment, if such breach of trust was committed by some
other person.
(5) A
trustee shall not be liable for a breach of trust committed by a co-trustee
unless –
(a) the
trustee becomes aware or ought to have become aware of the commission of such
breach or of the intention of his or her co-trustee to commit a breach of
trust; and
(b) the
trustee actively conceals such breach or such intention or fails within a
reasonable time to take proper steps to protect or restore the trust property
or prevent such breach.
(6) A
beneficiary may –
(a) relieve
a trustee of liability to the beneficiary for a breach of trust;
(b) indemnify
a trustee against liability for a breach of trust.
(7) Paragraph
(6) shall not apply unless the beneficiary –
(a) has
legal capacity;
(b) has
full knowledge of all material facts; and
(c) is
not improperly induced by the trustee to take action under paragraph (6).
(8) Where
2 or more trustees are liable in respect of a breach of trust, they shall be
liable jointly and severally.
(9) A
trustee who becomes aware of a breach of trust to which paragraph (4)
relates shall take all reasonable steps to have such breach remedied.
(10) Nothing
in the terms of a trust shall relieve, release or exonerate a trustee from
liability for breach of trust arising from the trustee’s own fraud,
wilful misconduct or gross negligence.[48]
(11) [49]
31 Trustee acting in
respect of more than one trust
(1) A
trustee acting for the purposes of more than one trust shall not, in the
absence of fraud, be affected by notice of any instrument, matter, fact or
thing in relation to any particular trust if the trustee has obtained notice of
it by reason of the trustee’s acting or having acted for the purposes of
another trust.
(2) A
trustee of a trust shall disclose to his or her co-trustee any interest which
he or she has as trustee of another trust, if any transaction in relation to
the first mentioned trust is to be entered into with the trustee of such other
trust.
(3) Subject
to this Law (including in particular Articles 21 and 23), but despite any
other enactment or rule of law to the contrary, a person may in the capacity of
a trustee of one trust enter into a contract or other arrangement with himself
or herself in the person’s capacity as a trustee of one or more other
trusts.[50]
32 Trustee’s
liability to third parties[51]
(1) Where
a trustee is a party to any transaction or matter affecting the
trust –
(a) if
the other party knows that the trustee is acting as trustee, any claim by the
other party shall be against the trustee as trustee and shall extend only to
the trust property;
(b) if
the other party does not know that the trustee is acting as trustee, any claim
by the other party may be made against the trustee personally (though, without
prejudice to his or her personal liability, the trustee shall have a right of
recourse to the trust property by way of indemnity).
(2) Paragraph
(1) shall not affect any liability the trustee may have for breach of trust.
33 Constructive
trustee
(1) Subject
to paragraph (2), where a person (in this Article referred to as a
constructive trustee) makes or receives any profit, gain or advantage from a
breach of trust the person shall be deemed to be a trustee of that profit,
gain, or advantage.
(2) Paragraph
(1) shall not apply to a bona fide purchaser of
property for value and without notice of a breach of trust.
(3) A person
who is or becomes a constructive trustee shall deliver up the property of which
the person is a constructive trustee to the person properly entitled to it.
(4) This
Article shall not be construed as excluding any other circumstances under which
a person may be or become a constructive trustee.
34 Position of
outgoing trustee[52]
(1) Subject
to paragraph (2), when a trustee resigns, retires, is removed or otherwise
ceases to be a trustee, he or she shall duly surrender trust property in his or
her possession or under his or her control.[53]
(2) Article 43A
applies where a trustee resigns, retires, is removed or otherwise ceases to be
a trustee.[54]
(2A) [55]
(3) A
trustee who resigns, retires, is removed or otherwise ceases to be a trustee
and has complied with paragraph (1) shall be released from liability to
any beneficiary, trustee or person interested under the trust for any act or
omission in relation to the trust property or the trustee’s duty as a
trustee except liability –
(a) arising
from any breach of trust to which such trustee (or in the case of a corporate
trustee any of its officers or employees) was a party or to which the trustee
was privy;
(b) in
respect of actions to recover from such trustee (or in the case of a corporate
trustee any of its officers or employees) trust property or the proceeds of
trust property in the possession of such trustee, officers or employees .[56]
Protective trusts; class interests; and
certain powers
35 Spendthrift or
protective trust
(1) The
terms of a trust may make the interest of a beneficiary liable to termination.
(2) Without
prejudice to the generality of paragraph (1), the terms of a trust may
make the interest of a beneficiary in the income or capital of the trust
property subject to –
(a) a
restriction on alienation or disposal; or
(b) diminution
or termination in the event of the beneficiary becoming bankrupt or any of his
or her property becoming liable to sequestration for the benefit of his or her
creditors.
(3) [57]
(4) [58]
36 Class interests
(1) Subject
to the terms of a trust, the following rules shall apply where a trust or an
interest under a trust is in favour of a class of persons –
|
Rule 1
|
A class closes when it is no longer possible for any other person
to become a member of the class.
|
|
Rule 2
|
A woman who is over the age of 55 years shall be deemed to be no
longer capable of bearing a child.
|
|
Rule 3
|
Where any class interest relates to income and for any period
there is no member of the class in existence the income shall be accumulated
and, subject to Article 15, shall be retained until there is a member of
the class in existence or the class closes.
|
(2) In
this Article “class interest” means a trust or an interest under a
trust which is in favour of a class of persons.
37 Variation of terms of a trust[59]
Without prejudice to any power of the court to vary the terms of a
trust, a trust may be varied in any manner provided by its terms.
38 Power of
accumulation and advancement
(1) Subject
to Article 15, the terms of a trust may direct or authorize –
(a) the
accumulation, for any period, of all or part of the income of the trust and its
addition to capital; or
(b) the
retention, for any period, of all or part of the income of the trust in its
character as income.[60]
(2) Subject
to Article 15, the terms of a trust may direct or authorize the
distribution of all or part of the income of the trust and whilst the trust
continues in existence and for so long as and to the extent that –
(a) the
income of the trust is not distributed or required to be distributed in
accordance with the terms of the trust;
(b) no
trust to accumulate income and add it to capital, or to retain income in its
character as income, applies; and
(c) no
power to accumulate income and add it to capital, or to retain income in its
character as income, is exercised,
the income of the trust shall be retained in its character as
income.[61]
(2A) Subject to the
terms of the trust, whilst the trust continues in existence, there shall be no
time period within which a power to accumulate income and add it to capital, to
retain income in its character as income or to distribute income must be
exercised.[62]
(3) Subject
to the terms of the trust and subject to any prior interests or charges
affecting the trust property, where a beneficiary is a minor and whether or not
the beneficiary’s interest –
(a) is
a vested interest; or
(b) is
an interest which will become vested –
(i) on attaining the age
of majority,
(ii) at any later age,
or
(iii) upon the happening of
any event,
the trustee may –
(A) accumulate
the income attributable to the interest of such beneficiary and add it to
capital or retain it in its character as income pending the attainment of the age
of majority or such later age or the happening of such event;
(B) apply
such income or part of it to or for the maintenance, education or other benefit
of such beneficiary;
(C) advance
or appropriate to or for the benefit of any such beneficiary such interest or part
of such interest. [63]
(4) The
receipt of a parent or the lawful guardian of a beneficiary who is a minor
shall be a sufficient discharge to the trustee for a payment made under paragraph (3).
(5) Subject
to the terms of the trust and subject to any prior interests or charges
affecting the trust property, the trustee may advance or apply for the benefit
of a beneficiary all or part of the trust property prior to the date of the
happening of the event upon the happening of which the beneficiary becomes
entitled absolutely thereto.[64]
(6) All
of the trust property advanced or applied under paragraph (5) shall be
brought into account in determining from time to time the share of the
beneficiary in the trust property.[65]
(7) Trust
property advanced or applied under paragraph (5) shall not exceed the
presumptive, contingent or vested share of the beneficiary in the trust
property.[66]
39 Power of
appointment
The terms of a trust may confer on the trustee or any other person
power to appoint or assign all or any part of the trust property or any
interest in the trust property to, or to trustees for the benefit of, any person,
whether or not such person was a beneficiary of the trust immediately prior to
such appointment or assignment.
40 Power of
revocation
(1) A
trust and any exercise of a power under a trust may be expressed to
be –
(a) revocable
whether wholly or partly; or
(b) capable
of variation.
(2) No
such revocation or variation shall prejudice anything lawfully done by a
trustee in relation to a trust before the trustee receives notice of such
revocation or variation.
(3) Subject
to the terms of the trust, if it is revoked the trustee shall hold the trust
property in trust for the settlor absolutely.
(4) Where
a trust is partly revoked paragraph (3) shall apply to the property which
is the subject of such revocation.
(5) In paragraph (3)
“settlor” means the particular person who provided the property
which is the subject of revocation.
(6) Notwithstanding
paragraphs (3) and (4), Article 43A apples where a trust is wholly or
partly revoked.[67]
41 Power to provide
for change of proper law
The terms of a trust may provide for the proper law of the trust to
be changed from the law of Jersey to the law of another jurisdiction.
Failure, lapse and termination of trusts
42 Failure or lapse
of interest
(1) Subject
to the terms of a trust and subject to any order of the court,
where –
(a) an
interest lapses;
(b) a
trust terminates;
(c) there
is no beneficiary and no person who can become a beneficiary in accordance with
the terms of the trust; or
(d) property
is vested in a person which is not for his or her sole benefit and the trusts
upon which he or she is to hold the property are not declared or communicated
to the person,
the interest or property affected by such lapse, termination, lack
of beneficiary or lack of declaration or communication of trusts shall be held
by the trustee or the person referred to in sub-paragraph (d), as the case
may be, in trust for the settlor absolutely or if he or she is dead for his or
her personal representative.
(2) An
application to the court under this Article may be made by the Attorney
General.[68]
(3) In
paragraph (1) “settlor” means the particular person who
provided the interest or property affected as mentioned in that paragraph.[69]
(4) [70]
43 Termination of a Jersey
trust
(1) On
the termination of a trust the trust property shall be distributed by the
trustee within a reasonable time in accordance with the terms of the trust to
the persons entitled thereto.
(2) Notwithstanding
paragraph (1), Article 43A applies on the termination of a trust.[71]
(3) Without
prejudice to the powers of the court under paragraph (4) and
notwithstanding the terms of the trust, where all the beneficiaries are in
existence and have been ascertained and none are interdicts or minors they may
require the trustee to terminate the trust and distribute the trust property
among them.
(4) The
court may –
(a) require
the trustee to distribute the trust property;
(b) direct
the trustee not to distribute the trust property; or
(c) make
such other order as it thinks fit.
(5) In
this Article “liabilities” includes contingent liabilities.
(6) An
application to the court under this Article may be made by any person referred
to in Article 51(3).
Security[72]
43A Security[73]
(1) A
trustee –
(a) who –
(i) resigns, retires,
is removed or otherwise ceases to be a trustee, or
(ii) distributes trust
property; or
(b) of
a trust that is terminated or wholly or partly revoked,
may, before distributing or surrendering trust property, as the case
may be, require to be provided with reasonable security for liabilities whether
existing, future, contingent or otherwise.
(2) Where
security required to be provided under paragraph (1) is in the form of an
indemnity, the indemnity may be provided in respect of –
(a) the
trustee or a person engaged in the management or administration of the trust on
behalf of the trustee;
(b) any
or all of the present, future or former officers and employees of the
trustee or person engaged in the management or administration of the trust on
behalf of the trustee; and
(c) the
respective successors, heirs, personal representatives or estates of the
persons mentioned in sub-paragraphs (a) and (b),
and any person in respect of whom the indemnity is provided under
this paragraph may enforce the terms of the indemnity in their own right
(whether or not they are party to the contract or other arrangement providing
the indemnity).
(3) If an indemnity to which paragraph (2)
refers is extended or renewed by a contract or other arrangement and that
contract or other arrangement provides an indemnity in respect of any of the
persons referred to in paragraph (2), any such person may enforce the
terms of the indemnity in their own right (whether or
not they are party to that contract or other arrangement).
Powers of the court
44 Appointment of
resident trustee
(1) Where
there is no trustee resident in Jersey a beneficiary may apply to the court for
the appointment of a person nominated for the purpose in the application, who
shall be a person who resides in Jersey, as an additional trustee.
(2) The
court –
(a) upon
being satisfied that notice of the application by the beneficiary has been
served upon the trustees;
(b) having
heard any representations made by the trustees or any other beneficiary; and
(c) having
ascertained that the person nominated for the purpose in the application is
willing to act,
may make an order appointing such person as an additional trustee.
45 Power to relieve
trustee from personal liability
(1) The
court may relieve a trustee either wholly or partly from personal liability for
a breach of trust where it appears to the court that –
(a) the
trustee is or may be personally liable for the breach of trust;
(b) the
trustee has acted honestly and reasonably;
(c) the
trustee ought fairly to be excused –
(i) for the breach of
trust, or
(ii) for omitting to
obtain the directions of the court in the matter in which such breach arose.
(2) Paragraph
(1) shall apply whether the transaction alleged to be a breach of trust
occurred before or after the commencement of this Law.
46 Power to make
beneficiary indemnify for breach of trust
(1) Where
a trustee commits a breach of trust at the instigation or at the request or
with the consent of a beneficiary, the court may by order impound all or part
of the interest of the beneficiary by way of indemnity to the trustee or any person
claiming through the trustee.
(2) Paragraph
(1) applies whether or not such beneficiary is a minor or an interdict.
47 Variation of
terms of a Jersey trust by the court and approval of particular transactions
(1) Subject
to paragraph (2), the court may, if it thinks fit, by order approve on
behalf of –
(a) a
minor or interdict having, directly or indirectly, an interest, whether vested
or contingent, under the trust;
(b) any
person, whether ascertained or not, who may become entitled, directly or indirectly,
to an interest under the trust as being at a future date or on the happening of
a future event a person of any specified description or a member of any
specified class of persons;
(ba) any
person, if the court is satisfied that despite reasonable effort to find such
person, the person cannot be found;
(bb) any
person, if the court is satisfied that the person falls within a class of
beneficiary and that because of the number of persons falling within that class
it is unreasonable for the person to be contacted;
(c) any
person unborn; or
(d) any
person in respect of any interest of his or hers that may arise by reason of
any discretionary power given to anyone on the failure or determination of any
existing interest that has not failed or determined,
any arrangement, by whomsoever proposed and whether or not there is
any other person beneficially interested who is capable of assenting thereto,
varying or revoking all or any of the terms of the trust or enlarging the
powers of the trustee of managing or administering any of the trust property.[74]
(2) The
court shall not approve an arrangement on behalf of any person coming within paragraph (1)(a),
(b), (ba), (bb) or (c) unless the carrying out thereof appears to be for the
benefit of that person.[75]
(3) Where
in the management or administration of a trust, any sale, lease, pledge,
charge, surrender, release or other disposition, or any purchase, investment,
acquisition, expenditure or other transaction is in the opinion of the court
expedient but the same cannot be effected by reason of the absence of any power
for that purpose vested in the trustee by the terms of the trust or by law the
court may confer upon the trustee either generally or in any particular
circumstances a power for that purpose on such terms and subject to such
provisions and conditions, if any, as the court thinks fit and may direct in
what manner and from what property any money authorized to be expended and the
costs of any transaction are to be paid or borne.
(4) An
application to the court under this Article may be made by any person referred
to in Article 51(3).
47A Trusts for
charitable or non-charitable purposes[76]
(1) Where
trust property is held for a charitable or non-charitable purpose and any of
the circumstances mentioned in paragraph (2) apply, the court may, on the
application of a trustee or the Attorney General, declare that the property or
the remainder of the property, as the case may be, shall be held for such other
charitable or non-charitable purpose, as the case may be, as the court
considers to be consistent with the original intention of the settlor.
(2) The
circumstances are that –
(a) the
purpose has, as far as is reasonably possible, been fulfilled, has ceased to
exist or is no longer applicable;
(b) the
purpose cannot be carried out having regard to the directions given by the
settlor or the spirit of the gift;
(c) the
purpose provides a use for only part of the trust property;
(d) the
property, and any other property applicable for a similar purpose, can more
effectively be applied to a common purpose, regard being had to the spirit of
the gift;
(e) the
purpose was laid down by reference to an area that is no longer a unit for that
purpose, or by reference to a class of persons or to an area that is no longer
appropriate, regard being had to the spirit of the gift or the practicality of
administering the gift;
(f) the
purpose has been adequately provided for by other means;
(g) in
the case of a trust for charitable purposes, the purpose has ceased for what
ever reason to be charitable; or
(h) the
purpose has ceased in any other way to provide a suitable and effective method
of using the property, regard being had to the spirit of the gift.
(3) Where
trust property is held for a charitable or non-charitable purpose the court
may, on the application of a trustee or the Attorney General, approve any
arrangement that varies or revokes the purposes of the trust or enlarges or
modifies the powers of management or administration of the trustees, if it is
satisfied that the arrangement –
(a) is
suitable and expedient; and
(b) is
consistent with the original intention of the settlor and the spirit of the
gift.
(4) The
court shall not approve an arrangement under paragraph (3) unless it is
satisfied that any person with a material interest in the trust has had an
opportunity to be heard.
47B Articles 47D
to 47J: Interpretation[77]
(1) In
Articles 47D to 47J –
(a) references
to a transfer or other disposition of property to a trust, do not include a
testamentary disposition;
(b) “power”
includes a discretion as to the way in which an obligation is performed.
(2) In
Articles 47E and 47G, “mistake” includes (but is not limited
to) –
(a) a
mistake as to –
(i) the effect of,
(ii) any consequences
of, or
(iii) any of the advantages
to be gained by,
a transfer or other disposition of property to a trust, or the
exercise of a power over or in relation to a trust or trust property;
(b) a
mistake as to a fact existing either before or at the time of, a transfer or
other disposition of property to a trust, or the exercise of a power over or in
relation to a trust or trust property; or
(c) a
mistake of law including a law of a foreign jurisdiction.
47C Determination of “mistake”[78]
The doctrine of “erreur” in Jersey customary law as
applied to the law of contract, shall not apply to any question concerning the
meaning of “mistake” for the purposes of determining an application
under Article 47E or 47G.
47D Application of powers under Articles 47E to 47I[79]
Articles 47E to 47I apply in relation to the transfer or other
disposition of property to a trust, or the exercise of any power over or in
relation to a trust or trust property that occurs either before or after the
coming into force of the Trusts (Amendment No. 6) (Jersey) Law 2013[80].
47E Power to set aside a transfer or disposition of property
to a trust due to mistake[81]
(1) In
this paragraph, “person exercising a power” means a person who
exercises a power to transfer or make other disposition of property to a trust
on behalf of a settlor.
(2) The
court may on the application of any person specified in Article 47I(1),
and in the circumstances set out in paragraph (3), declare that a transfer
or other disposition of property to a trust –
(a) by
a settlor acting in person (whether alone or with any other settlor); or
(b) through
a person exercising a power,
is voidable and –
(i) has such effect
as the court may determine, or
(ii) is of no effect
from the time of its exercise.
(3) The
circumstances are where the settlor or person exercising a power –
(a) made
a mistake in relation to the transfer or other disposition of property to a
trust; and
(b) would
not have made that transfer or other disposition but for that mistake, and
the mistake is of so serious a character as to render it just for
the court to make a declaration under this Article.
47F Power to set aside a transfer or disposition of property
to a trust exercised by fiduciary power[82]
(1) In
this paragraph, “person exercising a power” means a person who
exercises a power to transfer or make other disposition of property to a trust
on behalf of a settlor and who owes a fiduciary duty to the settlor in relation
to the exercise of his or her power.
(2) The
court may on the application of any person specified in Article 47I(1),
and in the circumstances set out in paragraph (3), declare that a transfer
or other disposition of property to a trust by a settlor (whether alone or with
any other settlor) through a person exercising a power, is voidable
and –
(a) has
such effect as the court may determine, or
(b) is
of no effect from the time of its exercise.
(3) The
circumstances are where, in relation to the exercise of his or her power, the
person exercising a power –
(a) failed
to take into account any relevant considerations or took into account
irrelevant considerations; and
(b) would
not have exercised the power, or would not have exercised the power in the way
it was so exercised, but for that failure to take into account relevant
considerations or that taking into account of irrelevant considerations.
(4) It
does not matter whether or not the circumstances set out in paragraph (3)
occurred as a result of any lack of care or other fault on the part of the
person exercising a power, or on the part of any person giving advice in
relation to the exercise of the power.
47G Power to set aside the exercise of powers in relation to
a trust or trust property due to mistake[83]
(1) In
this paragraph, “person exercising a power” means a person who,
otherwise than in the capacity of trustee, exercises a power over, or in
relation to a trust, or trust property.
(2) The
court may on the application of any person specified in Article 47I(2),
and in the circumstances set out in paragraph (3), declare that the
exercise of a power by a trustee or a person exercising a power over, or in
relation to a trust, or trust property, is voidable and –
(a) has
such effect as the court may determine; or
(b) is
of no effect from the time of its exercise.
(3) The
circumstances are where the trustee or person exercising a power –
(a) made
a mistake in relation to the exercise of his or her power; and
(b) would
not have exercised the power, or would not have exercised the power in the way
it was so exercised, but for that mistake, and
the mistake is of so serious a character as to render it just for
the court to make a declaration under this Article.
47H Power to set aside the exercise of fiduciary powers in
relation to a trust or trust property[84]
(1) In
this paragraph, “person exercising a power” means a person who,
otherwise than in the capacity of trustee, exercises a power over, or in
relation to a trust, or trust property and who owes a fiduciary duty to a
beneficiary in relation to the exercise of that power.
(2) The
court may on the application of any person specified in Article 47I(2), and
in the circumstances set out in paragraph (3), declare that the exercise
of a power by a trustee or a person exercising a power over, or in relation to
a trust, or trust property, is voidable and –
(a) has
such effect as the court may determine; or
(b) is
of no effect from the time of its exercise.
(3) The
circumstances are where, in relation to the exercise of his or her power, the
trustee or person exercising a power –
(a) failed
to take into account any relevant considerations or took into account irrelevant
considerations; and
(a) would
not have exercised the power, or would not have exercised the power in the way
it was so exercised, but for that failure to take into account relevant
considerations, or that taking into account of irrelevant considerations.
(4) It
does not matter whether or not the circumstances set out in paragraph (3)
occurred as a result of any lack of care or other fault on the part of the
trustee or person exercising a power, or on the part of any person giving
advice in relation to the exercise of the power.
47I Applications and orders under Articles 47E to
47H[85]
(1) An
application under Article 47E(2) or 47F(2) may be made by any settlor or
any of his or her personal representatives or successors in title.
(2) An
application under Article 47G(2) or 47H(2) may be made by –
(a) the
trustee who exercised the power concerned, or the person exercising a power (as
the case may be);
(b) any
other trustee;
(c) a
beneficiary or enforcer;
(d) the
Attorney General in relation to a trust containing charitable trusts, powers or
provisions;
(e) any
other person with leave of the court.
(3) Without
prejudice to Article 51 and subject to paragraph (4), the court may,
consequential upon a declaration made under any of Articles 47E to 47H,
make such order as it thinks fit.
(4) No
order may be made under paragraph (3) which would prejudice any bona fide
purchaser for value of any trust property without notice of the matters which
render the transfer or other disposition of property to a trust, or the
exercise of any power over or in relation to a trust or trust property,
voidable.
47J Savings in respect of applications made
under Articles 47E to 47H[86]
Nothing in Articles 47E to 47H shall prejudice –
(a) any
application for a declaration that a transfer or other disposition of property
to a trust, or the exercise of any power over or in relation to a trust or
trust property, is void or voidable on grounds other than those specified in
Articles 47E to 47H; or
(b) any
personal remedy which may be available against a trustee or any other person.
PART 3
PROVISIONS APPLICABLE TO A FOREIGN TRUST
48 Application of Part
3
This Part of this Law shall apply only to a foreign trust.
49 Enforceability of
a foreign trust
(1) Subject
to paragraph (2), a foreign trust shall be regarded as being governed by,
and shall be interpreted in accordance with its proper law.
(2) A
foreign trust shall be unenforceable in Jersey –
(a) to
the extent that it purports –
(i) to do anything
the doing of which is contrary to the law of Jersey,
(ii) to confer any
right or power or impose any obligation the exercise or carrying out of which
is contrary to the law of Jersey, or
(iii) to apply directly to
immovable property situated in Jersey;
(b) to
the extent that the court declares that the trust is immoral or contrary to
public policy.
(3) Where
paragraph (2)(a)(iii) applies, any person in whom the title to such
immovable property is vested shall not be, and shall not be deemed to be, a
trustee of such immovable property.
PART 4
PROVISIONS OF GENERAL APPLICATION
50 Application of Part
4
This Part of this Law shall apply to a Jersey trust and, to the
extent that the context admits, shall apply to a foreign trust.
51 Applications to
and certain powers of the court
(1) A
trustee may apply to the court for direction concerning the manner in which the
trustee may or should act in connection with any matter concerning the trust
and the court may make such order, if any, as it thinks fit.
(2) The
court may, if it thinks fit –
(a) make
an order concerning –
(i) the execution or
the administration of any trust,
(ii) the trustee of
any trust, including an order relating to the exercise of any power, discretion
or duty of the trustee, the appointment or removal of a trustee, the
remuneration of a trustee, the submission of accounts, the conduct of the
trustee and payments, whether payments into court or otherwise,
(iii) a beneficiary or any person
having a connection with the trust, or
(iv) the appointment or
removal of an enforcer in relation to any non-charitable purposes of the trust;
(b) make
a declaration as to the validity or the enforceability of a trust;
(c) rescind
or vary any order or declaration made under this Law, or make any new or
further order or declaration.[87]
(3) An
application to the court for an order or declaration under paragraph (2)
may be made by the Attorney General or by the trustee, the enforcer or a
beneficiary or, with leave of the court, by any other person.[88]
(4) Where
the court makes an order for the appointment of a trustee it may impose such
conditions as it thinks fit, including conditions as to the vesting of trust
property.
(5) Subject
to any order of the court, a trustee appointed under this Article shall have
the same powers, discretions and duties and may act as if the trustee had been
originally appointed as a trustee.
52 Execution of
instruments by order of the court
Where any person neglects or refuses to comply with an order of the
court directing the person to execute or make any conveyance, assignment, or other
document or instrument or endorsement, for giving effect to any order of the
court under this Law, the court may, on such terms and conditions, if any, as
may be just, order that the conveyance, assignment, or other document or
instrument or endorsement, shall be executed, made or done by such person as
the court nominates for the purpose, at the cost of the person in default, or
otherwise, as the court directs, and a conveyance, assignment, document,
instrument or endorsement so executed, made or done shall operate and be for
all purposes available as if it had been executed, made or done by the person
originally directed to execute, make or do it.
53 Payment of costs
The court may order the costs and expenses of and incidental to an
application to the court under this Law to be raised and paid out of the trust
property or to be borne and paid in such manner and by such persons as it
thinks fit.
54 Nature of
trustee’s estate, following trust property and insolvency of trustee
(1) Subject
to paragraph (2) –
(a) the
interest of a trustee in the trust property is limited to that which is
necessary for the proper performance of the trust; and
(b) such
property shall not be deemed to form part of the trustee’s assets.
(2) Where
a trustee is also a beneficiary of the same trust, paragraph (1) shall not
apply to the trustee’s interest in the trust property as a beneficiary.
(3) Without
prejudice to the liability of a trustee for breach of trust, trust property
which has been alienated or converted in breach of trust or the property into
which it has been converted may be followed and recovered unless it is in the
hands of a bona fide purchaser for value without notice of a breach of trust or
a person (other than the trustee) deriving title through such a person.[89]
(4) Where
a trustee becomes insolvent or upon distraint, execution or any similar process
of law being made, taken or used against any of the trustee’s property, the
trustee’s creditors shall have no right or claim against the trust
property except to the extent that the trustee himself or herself has a claim
against the trust or has a beneficial interest in the trust.
55 Protection to
persons dealing with trustee
(1) A bona
fide purchaser for value without actual notice of any breach of
trust –
(a) may
deal with a trustee in relation to trust property as if the trustee was the
beneficial owner of the trust property; and
(b) shall
not be affected by the trusts on which such property is held.
(2) No person
paying or advancing money to a trustee shall be concerned to see that such
money is wanted, or that no more than is wanted is raised, or otherwise as to
the propriety of the transaction or the application of the money.
56 [90]
57 Limitation of
actions or prescription
(1) No
period of limitation or prescription shall apply to an action brought against a
trustee –
(a) in
respect of any fraud to which the trustee was a party or to which the trustee
was privy; or
(b) to
recover from the trustee trust property –
(i) in the
trustee’s possession,
(ii) under the
trustee’s control, or
(iii) previously received by the
trustee and converted to the trustee’s use.
(2) Where
paragraph (1) does not apply, the period within which an action founded on
breach of trust may be brought against a trustee by a beneficiary is 3 years
from –
(a) the
date of delivery of the final accounts to the beneficiary; or
(b) the
date on which the beneficiary first has knowledge of the breach of trust,
whichever is earlier.[91]
(3) Where
paragraph (1) does not apply but, when the breach occurs the
beneficiary –
(a) is
a minor;
(b) is
an interdict; or
(c) is
under any other legal disability,
the period to which paragraph (2) refers shall not begin to run
before the beneficiary ceases to be a minor or interdict or under that other
legal disability (as the case may be), or sooner dies.[92]
(3A) Where
paragraph (1) does not apply, the period within which an action founded on
breach of trust may be brought against a trustee by an enforcer is 3 years
from –
(a) the
date of delivery of the final accounts to the enforcer; or
(b) the
date on which the enforcer first has knowledge of the breach of trust,
whichever is earlier.[93]
(3B) Where
paragraph (1) does not apply, the period within which an action founded on
breach of trust may be brought against a former trustee by a trustee is
3 years from the date on which the former trustee ceased to be a trustee.[94]
(3C) Where
paragraph (1) does not apply, no action founded on breach of trust may in
any event be brought against a trustee by any person after the expiry of the
period of 21 years following the occurrence of the breach.[95]
(4) This
Article does not apply to a foreign trust whose proper law is the law of a
jurisdiction to which the Convention on the law applicable to trusts and on
their recognition, signed at The Hague on 20th October 1984, for the time
being extends.[96]
PART 5
SUPPLEMENTAL
58 Application of
this Law
Subject to Article 59, this Law shall apply to trusts
constituted or created either before or after the commencement of this Law.
59 Saving provisions
(1) Nothing
in this Law shall –
(a) abridge
or affect the powers, responsibilities or duties under any provision of law of
the Viscount or any delegate, tuteur, special
and general attorney, or person acting under the authority of a lasting power
of attorney conferred under Part 2 of the Capacity and Self-Determination
(Jersey) Law 2016[97];
(b) affect
the legality or validity of anything done before the commencement of this Law
in relation to a trust existing before the commencement of this Law; or
(c) affect
the legality or validity of any trust arising from a document or disposition
executed or taking effect before the commencement of this Law.[98]
(2) Nothing
in this Law shall derogate from the powers of the court which exist
independently of this Law –
(a) to
set aside or reduce any transfer or other disposition of property;
(b) to
vary any trust;
(c) to
reduce or vary any testamentary or other disposition;
(d) to
make an order relating to matrimonial proceedings; or
(e) to
make an order relating to the avoidance of fraud on creditors.
(3) Nothing
in this Law shall derogate from the provisions of –
(a) the
Loi
(1862) sur les teneures en fidéicommis et l’incorporation
d’associations;[99]
(b) the
Mental Health (Jersey) Law 2016[100];
(c) the
Sharing of Church Buildings (Jersey)
Law 1973[101].[102]
(4) Nothing
in this Law shall affect a personal representative where he or she is acting as
such.
60 Rules of Court
The power to make rules of court under the Royal Court (Jersey) Law 1948[103] shall include a power to
make rules for the purposes of this Law and proceedings thereunder.
61 Citation
This Law may be cited as the Trusts (Jersey) Law 1984.