Last updateTue, 24 Feb 2015 5pm

Ogier Legal

Ogier Legal

Gavin Ferguson and Chris Hards discuss the rise in the use of protectors

The offshore fiduciary industry began to see protectors being introduced during the mid to late 1980s. The rise in the popularity of their use may be attributed to many concerns but the following factors, rightly or wrongly, appear to dominate perceptions:

Nigel Sanders examines changes of trustees and protectors in contentious circumstances

Most modern trust instruments will contain provisions which grant certain individuals the power to effect a change of trustee or protector. It is well established in Jersey law that such a power is a fiduciary one: see Re Bird Charitable Trust [2008]. The legal principles as a matter of Jersey law that will apply to the exercise of these fiduciary powers of appointment of new trustees and protectors have been the subject of a number of Royal Court decisions. However, cases of particular note in recent times, in terms of the issues to be addressed when appointments are challenged, and the costs of those proceedings, were the Royal Court’s decisions in Representation of Jasmine Trustees Ltd [2015] and In the Matter of the Piedmont Trust and the Riviera Trust [2016]. The first decision provided useful guidance with regard to the test and approach that the court will apply when judging whether the exercise of a power of appointment was lawful. The second decision provided an analysis of the principles and considerations that are applied to the costs of any proceedings challenging such appointments.

Julie Melia outlines the procedure for will-making and probate in Jersey, and the consequences where it is not followed

Jersey’s law of inheritance and probate differs from that of the UK, and creates responsibilities for the executors and administrators of those who leave movable assets in the island on their death.

Amanda Mochrie and Erin Trimble-Cregeen highlight how trustees can protect themselves from the consequences of an ‘insolvent’ trust

The recent judgment in the Guernsey case of Investec v Glenalla [2013] (which is currently the subject of an appeal and may very well go to the Privy Council), is an important one for practitioners to familiarise themselves with as it deals with the issues faced by trustees in circumstances where a trust’s liabilities outweigh its assets. Although, of course, a trust has no separate legal personality and therefore cannot, strictly speaking, be ‘insolvent’, legal technicalities aside, the situation faced in this case was, in essence, that of an insolvent trust. A review of the background, the facts and then the decision itself highlights that this case contains a number of important warnings to trust practitioners advising trustees in relation to transactions with third parties and the potential dangers and pitfalls should that trust become insolvent.

Robert Dobbyn examines exclusive jurisdiction clauses in the light of Crociani v Crociani [2013]

In this case the Royal Court of Jersey considered the effect of an exclusive jurisdiction clause in a deed changing the trustees of a trust. The Royal Court held that this did not have the effect of placing any restriction on the ability of beneficiaries to bring claims against former trustees for the recovery of trust assets, nor did it retrospectively change the law governing the actions of former trustees.