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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Representation of Nedgroup Trust (Jersey) Limited [2014] JRC 126A (09 June 2014) URL: http://www.bailii.org/je/cases/UR/2014/2014_126A.html Cite as: [2014] JRC 126A |
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Trust - rectification sought by the representors of two deeds of appointment.
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Before : |
J. A. Clyde-Smith, Esq., Commissioner and Jurats Marett-Crosby and Crill |
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Between |
Nedgroup Trust (Jersey) Limited Nedgroup Private Wealth Fiduciary Services Limited |
Representors |
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And |
A |
First Respondent |
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And |
B |
Second Respondent |
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And |
C |
Third Respondent |
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And |
D |
Fourth Respondent |
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And |
Advocate F. B. Robertson, appointed pursuant to Rule 4/4 of the Royal Court Rules 2004 to represent the interests of the minor, unborn and unascertained beneficiaries |
Fifth Respondent |
IN THE MATTER OF THE REPRESENTATION OF NEDGROUP TRUST (JERSEY) LIMITED AND NEDGROUP PRIVATE WEALTH FIDUCIARY SERVICES LIMITED
AND IN THE MATTER OF THE ELB VOLUNTARY SETTLEMENT AND THE JLB VOLUNTARY SETTLEMENT
Advocate M. H. D. Taylor for the Representors.
Advocate A. Kistler for the First, Second, Third and Fourth Respondents.
Advocate L. K. A. Richardson appeared for Advocate Robertson.
judgment
the commissioner:
1. The representors seek the rectification of two deeds of appointment made in respect of two family settlements which we will refer to as "the ELB Settlement" and "the JCB Settlement" respectively and "the Settlements" together. The Settlements were both settled with funds derived from the family patriarch on 31st March, 1988, with the same settlors and original trustees.
2. The Settlements were in the same terms, save that under the ELB Settlement, in default of and subject to a wide overriding power of appointment contained in clause 3, the trustees were to pay the income of the trust fund to ELB (a grand-daughter of the family patriarch) for her life (with power to pay her the capital) and thereafter to hold the capital and income for JCB (a grand-daughter of the family patriarch) absolutely should she attain the age of eighteen years. Under the JCB Settlement, in default of and subject to a wide overriding power of appointment contained in clause 3, the trustees were to pay the income of the trust fund to JCB for her life (with power to pay her the capital) and thereafter to hold the capital and income for ELB absolutely, should she attain the age of eighteen years.
3. The Settlements are governed by English law in these terms (clause 33(2)):-
4. The representors are the current trustees of the Settlements. They are both Jersey incorporated companies carrying on business here and from where the Settlements are administered. The Court accordingly has jurisdiction under the terms of Article 5(b) and (d) of the Trusts (Jersey) Law 1984 as amended.
5. The Settlements were two out of nine trust arrangements which had been established with funds derived from the family patriarch for the benefit of his children, grandchildren and further issue. The trustees looked to him for guidance when administering all nine family trusts.
6. In or about February 2004 and prior to their appointment as trustees, the family patriarch informed the representors that he wished there to be a rebalancing or reapportionment of the funds held by all nine family trusts by way of transferring assets between them, so as to even out the distribution of wealth amongst the family.
7. In or about September 2004 and following the representors' appointment as trustees, the family patriarch informed the representors that it was no longer his wish that assets be moved amongst the family trusts but he wished rather that the trustees allocate percentage proportions to specific beneficiaries within each individual family trust, including each of the Settlements. He produced to the representors a copy of a document headed "Family Rules" that had been signed by all of the adult members of the family, the objectives of which were to ensure:-
(i) that the capital provided for the benefit of the family be protected;
(ii) that the family capital would grow at a steady rate;
(iii) that the family capital and its income would be fairly distributed from time to time among the members of the family. Whenever the actual income received by each person was not considered to be equitable as against the income received by others, a rebalancing would be necessary so far as that could be achieved without incurring Capital Gains Tax.
8. The Family Rules set out a detailed process for rebalancing, so that the income received by each member of the family would be equitable.
9. During his meetings with the representors, the family patriarch from time to time expressed the wish that the capital within the family trusts should be retained by the representors in their capacity as trustees and that he would be quite happy if the family capital were protected "in perpetuity" and never distributed. It was his wish expressed to the representors that the family members should be entitled to benefit only from the income derived from the trustees' careful investment of the capital of the family trusts rather than from their capital.
10. In or about September 2003, the family patriarch instructed an English solicitor named Geoffrey Shindler of Halliwells, a firm of solicitors in England, to provide tax advice in relation to the family trusts.
11. In November 2004, Mr Shindler sent to the representors two draft deeds of appointment which provided for the appointment of the trust funds of the Settlements amongst named family members in specified proportions and at the expense of ELB and JCB. The operative wording in each deed was as follows:-
"The Appointors, in exercise of the power of appointment conferred by Clause 3 of the Settlement and of all other relevant powers HEREBY APPOINT AND DECLARE irrevocably that the Trust Fund shall, from the date of this Deed, be held as to both capital and income upon trust for the following beneficiaries in the proportions set opposite their respective names absolutely."
12. It can be seen that this purports to be an outright distribution to the family members concerned, terminating the Settlements which, as we will come to in a moment, we are satisfied from the evidence before us, was not the intention of the family patriarch or the representors. The intention was that the trust funds should remain subject to the overriding power of appointment contained in Clause 3 thus keeping the Settlements alive.
13. The representors noted from the drafts that some of the family members named were not within the beneficial class of the Settlements and they were then requested by both ELB and JCB in writing to add them as beneficiaries, pursuant to the power contained within the Settlements which is in the following terms:-
"6. The Trustees shall have power at any time or times during the Trust Period by deed recoverable or irrevocable endorsed on these presents to declare that any person or class of persons therein specified shall during the remainder of the Trust Period or for such shorter period as may be specified be included in the class of Discretionary Objects hereinbefore defined." (our emphasis)
14. Deeds of addition were duly executed on 18th March, 2005, adding these family members as beneficiaries to each of the Settlements, but they were not "endorsed on these presents". On 21st March, 2005, the deeds of appointment were duly executed.
15. Following the execution of the deeds of appointment, the representors continued to administer the Settlements on the basis that they were subject to the overriding power of appointment in clause 3 and had not been terminated by outright distributions to the family members. Income was paid to the family members concerned and annual accounts were produced on that basis.
16. In 2009, new accountants appointed by the representors advised that the deeds of appointment had in fact appointed out the funds absolutely to the family members concerned, thus terminating the Settlements. The accountants advised that on the basis of outright distributions, Capital Gains Tax in the amount of £527,810.27 would be payable by the family members concerned in proportion to the distributions made to them. The beneficiaries and HM Revenue and Customs were notified.
17. In March 2011, the representors and the beneficiaries issued proceedings in England against Halliwells (which was then in administration), for breach of their duty of care in preparing the deeds of appointment.
18. In their answer filed on 19th August, 2011, Halliwells denied negligence, but asserted in the alternative that the plaintiffs had failed to mitigate their loss by not applying to the Royal Court to have the deeds of appointment set aside. The proceedings were then stayed pending this application.
19. The representors are seeking the following substantive relief:-
(i) A determination of the validity of the deeds of addition.
(ii) A declaration as to the true construction of the deeds of appointment as executed.
(iii) If necessary, rectification of each of the deeds of appointment; or
(iv) An order that the deeds of appointment be set aside and declared to be of no effect for mistake.
20. The Settlements being governed by English law, the representors filed two affidavits of English law by Paul Bernard Matthews, an English solicitor advocate, who is a consultant of the firm of Withers LLP and part-time professor of law at King's College, London. He is co-editor of Underhill and Hayton's Law of Trusts and Trustees and the co-author of The Jersey Law of Trusts.
21. As to the factual issues, the Court received affidavits from the family patriarch, Mr Christopher Roscouet of the representors, Mr Justin Thomas formerly of the representors, Ms Helena Pace, who was a trust officer at the time the deeds of appointment were executed, ELB and JCB.
22. Pursuant to Clause 33(2) of the Settlements, this falls to be governed by English law. The issue here is that the two deeds of addition were not "endorsed" on the relevant deed of settlement, nor even stapled or even fixed to the deed of settlement.
23. Mr Matthews advises that English law allows for a settlor to stipulate whatever formalities he wishes for the due execution of a power, and subject to one point, unless these formalities are complied with, the power has not been validly exercised (Rutland v Doe d Whythe [1843] 10 Cl & Fin 419, 441).
24. The one point referred to relates to section 159(1) of the Law of Property Act 1925 which provides:-
25. The two deeds of addition were executed in the presence of and attested by two witnesses and so the question arises as to whether they are powers of appointment for the purposes of Section 159(1). It is helpful to set out the advice of Mr Matthews which is as follows:-
"This provision however applies only to "a power of appointment". So the question is whether the power to add further persons to a class of objects is a "power of appointment". Some may consider that this phrase can only refer to a power to allocate property or a share in property to certain persons. But "appoint" and "appointment" are ordinary English words that can mean simply "choose" and "choice" respectively. So on that basis a power to choose need not be restricted to a power to one to give property to one or more persons. It could apply to any power to make decisions which affect the property, including the power to add members to a discretionary class.
20. I have found no useful authority on the meaning of this phrase in the section, whether in cases or in textbooks or commentaries. In Megarry & Wade, The Law of Real Property, 8th ed, para 9-116 (on limitation) a power of appointment is defined as a "power for the person to whom it is given ... to appoint property to such persons ... as he may select." But that view is expressed in a particular context. A suggestion in Lewin on Trusts, 18th ed 2008, para 29-171 (without supporting authority), that the section applies to all powers has been amended (again without citation of authority) in the most recent cumulative supplement to that work, so leaving that work now expressing the view that the section applies only to 'powers of appointment'. Those are the words used in the section, and therefore this takes us no further.
21. Nor does the statutory context help much. Part VI of the Law of Property Act 1925 is headed simply "Powers", and contains six sections. Three of them (155, 156, 160) refer simply to 'powers'. One (157) refers to 'power of appointment over property', and one (158) refers to 'power to appoint any property'. Section 159 is the only one to refer to 'power of appointment' without referring to property. One could for example argue that ss 157 and 158, by specifically referring to 'property', when the others do not, implicitly suggest that the other sections are not restricted to powers concerning property. But that is a rather slender basis for taking a view. On the whole, I just think the other sections do not help in the construction of s 159.
22. Modern judges do tend to seek to validate rather than invalidate exercises of power if they properly can. Hence I would expect an English Chancery judge to be sympathetic to the view that s 159 should be capable of being prayed in aid, because on the ordinary meaning of the words used it seems to cover the case, and there is no authority to require a different view. It is therefore the view that I adopt. Accordingly the deeds of addition are valid, according to English law, "as to the execution and attestation thereof" by the two corporate trustees, despite non-compliance with the requirement of endorsing them on the deeds of settlement themselves."
26. The Court accepts the advice of Mr Matthews on this issue, and accordingly we find that the deeds of addition are valid.
27. Again, this falls to be determined under English law. Mr Matthews does not directly deal with the point, as his advice proceeds on the basis that the deeds of appointment did appoint the trust funds out to the beneficiaries absolutely. In our view, we need no advice on English law in this respect as the effect of the words used is clear. The trust fund was "irrevocably" appointed to be held as to both capital and income on trust for the beneficiaries in their respective shares "absolutely".
28. The representors seek to invoke the equitable jurisdiction of the Court to rectify the deeds of appointment or to set them aside for mistake, forms of relief that can be characterised as restitutionary in nature. In either case, an order of the Court would result in the restoration of the capital benefits or powers (or both) obtained by the family members named at the expense of ELB and JCB.
29. In the case of In the matter of the S Trust [2011] JLR 375, the settlor, who was domiciled in England, had transferred shares in a French company to a Jersey company, which then settled the same on trusts governed by English law but administered in Jersey. The settlor applied to have the transfer set aside for mistake, and the Court held that the proper law of the restitutionary obligation was the law of Jersey, where the enrichment occurred. The Court referred to Rule 230 of Dicey, Morris & Collins The Conflict of Laws, 14th ed. (2006):-
30. Quoting from the judgment of Sir Philip Bailhache, Commissioner, at paragraph 15:-
31. He went on to say:-
32. The enrichment in the case before us occurred in England, where all the beneficiaries who have benefited from the deeds of appointment reside, and therefore, following the S Trust, English law should apply. English law is also, of course, the proper law of the Settlements.
33. In Dervan and another v Concept Fiduciaries Limited and others 30th November 2012 Judgement 38/2012, the Royal Court of Guernsey declined to follow the S Trust (and CC Limited v Apex Trust Limited [2012] (1) JLR 314). In that case, the first applicant, who resided in England, sought to set aside transfers of shares in an English company to a Guernsey company to be held upon the terms of an English proper law trust (for the remuneration of the employees of the English company). The second applicant was the same English company, which had paid £500,000 to the same Guernsey company for the same purpose. Having considered the 1984 Hague Convention on the Law applicable to Trusts and on their Recognition, Article 4 of which provides that "the Convention does not apply to preliminary issues relating to the validity of wills or of other acts by virtue of which assets are transferred to the trustee", McMahon, Deputy Bailiff, looked for guidance from The International Trust (3rd edition Jordans 2011) by Professor Harris and adopted the lex situs route. Registered shares have their situs in the country where they may be dealt with and where the register is kept. On that basis, it being registered shares in an English company that were transferred, the lex situs was the law of England, which he found was the applicable law (which also corresponded with the choice of law on the face of the impugned deed of assignment). We observe that applying the lex situs route would probably have led to the Court in the S Trust applying French law as the subject matter of the transfer in that case were shares in a French company.
34. In relation to the transfer of money by the same English company, he found that it constituted trust money in the hands of the Guernsey company that received it, which trust, applying section 3 of the Trusts (Guernsey) Law 2007, had its closest connection with English law, because the funds were intended to go into a trust governed by English law and because of the ongoing connection with the English company and its objective of establishing a remuneration trust for the benefit of its employees.
35. Rejecting the approach of the Jersey Court in the S Trust and its reliance on Rule 230 and noting that there was no reference in the S Trust to the Hague Convention, to the learning thereon of Professor Harris or the equivalent in the Trusts (Jersey) Law 1984 of section 65 of the Trusts (Guernsey) Law 2007, namely Article 49, McMahon said this as between applying the "contracts approach" in Rule 230(2)(a), which he preferred, or as was found in the S Trust the "other circumstances" approach in Rule 230(2)(c):-
He went on to point out that there was a prior relationship in that case and observed at paragraph 46:-
36. The facts in this case can be distinguished from those in the S Trust and Dervan. In those cases, the Courts were concerned with transfers into a trust by persons outwith the jurisdiction; here, we are dealing with appointments out of two established Settlements, already governed by English law, by means of two deeds of appointments by necessary implication also governed by English law. The two deeds of appointment provide in clause 1 that "the definitions and rules of construction contained in the Settlement shall apply". By clause 33(2) of the Settlements, English law applies to the construction and effect of its provisions.
37. The important point, it seems to us, is that there was, in this case, a prior underlying relationship between the representors and the beneficiaries to whom the appointments were made and this was through the Settlements, which were expressly governed by English law. Although the appointments were not contractual in nature, the underlying transactions were governed by English law. Using the "contracts approach" in Rule 230(2)(a) we determine that English law should be applied to the obligation of the beneficiaries to make restitution in order to apply as far as possible one legal system to all aspects of a unitary situation and in order to retain consistency and harmony in the Court's approach. If we are wrong in this respect, then applying Rule 230(2)(c) leads to the same outcome.
38. Therefore we look to the advice of Mr Matthews on the English law to be applied, which is set out in paragraphs 23-33 of his first affidavit, which we would distil in this way.
39. Paragraph 25 of the affidavit of Mr Matthews sets out a dictum of Brightman J in Re Butlin's Settlement Trusts [1976] Ch 251, stating in essence that the Court has power to rectify a voluntary settlement, so that it expresses the free intention of the maker of the document, not only where particular words have been added, omitted or wrongly written as the result of careless copying but also:-
40. This is so even if the maker had never been asked to approve a document in the rectified form (paragraph 26 of Mr Matthews' affidavit).
41. The mistake in the drafting of the document, whether by the maker or his advisers, may consist of leaving out words that were intended to be inserted into the document "or through a misunderstanding by those involved about the meanings of words or expressions that were used in the document" (paragraph 29 of Mr Matthews' affidavit).
42. The standard of proof is the civil standard of the balance of probabilities although sufficient evidence is required to overcome the inherent probability that a signed document represented the intentions of the maker, but his uncontradicted evidence may be sufficient (paragraph 27 of Mr Mathews' affidavit).
43. In paragraphs 31 and 32 of Mr Matthews' affidavit, he set out his opinion on the issue:-
"31. ...where appointors exercise powers to achieve particular legal effects by the use of particular words which they are advised give effect to their intentions, but the words used are inapt to do so, then the intentions of the appointors have not been properly recorded in the documents which they executed, and accordingly rectification should in principle be available, subject to the usual defences (bona fide purchaser for value without notice, laches and acquiescence) and also any objection by a trustee ..."
"32. Therefore, if the Royal Court considered that the trustees had a particular intention (e.g. to create life interests but not to appoint capital) and were advised, wrongly, to use the words found in the 2005 instruments to do so, then according to English law those words could be rectified to give effect to that intention. If however the Court considered that the trustees intended to do what they did in the belief that it would achieve [the family patriarch's] desired rebalancing without affecting the ability to appoint capital in the future, and were induced to do so by mistake, then in English law rectification would be inappropriate, because the words used would have correctly recorded the trustees' intention, as in Allnutt v Wilding. On the other hand, the appointments might be capable of being set aside for mistake, as set out below. On the evidence that I have so far seen in my opinion an English court would be more likely to conclude in the former rather than the latter sense, but of course fact-finding is a matter for the Royal Court."
44. We have considered carefully the detailed evidence before us, which we are not going to set out in this judgment. It may seem surprising that trust officers, when reading the draft deeds of appointment, failed to appreciate their impact. Despite the very proper disclosure of one letter from Mr Shindler to the family patriarch that might indicate to the contrary, we are satisfied that they did fail to appreciate its impact, not just because of what we have been told as to their understanding, but by their subsequent conduct, which was entirely inconsistent with the Settlements having terminated and consistent with the Settlements continuing. The words used in the drafts prepared by Mr Shindler were inapt to give effect to their intentions, which were to create life interests and not to appoint capital.
45. We received detailed skeleton arguments from Advocate Kistler, on behalf of the adult beneficiaries and from Advocate Richardson on behalf of the minor, unborn and unascertained beneficiaries. Suffice it to say that both fully supported the application for rectification. This is, if we may say so, a remarkable family, none of whose members seek to take advantage from any windfall that may have come about as a result of what they perceive to be a mistake. Harmony for this family is a very important factor. They were all quite clear that outright distributions were never intended.
46. There is no evidence that any third parties would suffer any detriment as a result of an order for rectification. The beneficiaries have a probable Capital Gains Tax liability, which rectification would avoid. HMRC have been notified of the application and have not sought to be joined as a party, nor have they responded.
47. Applying English law to the facts, we have decided to exercise our discretion to rectify the deeds of appointment in the manner set out in the two drafts filed with the Court. That being the case, we have no need to go on to consider setting those appointments aside for mistake.
48. We did raise with Advocate Taylor the apparent delay in bringing this application. This was as a result of a culmination of factors including the liquidation of Halliwells, and conflicting advice as to where a remedy should be sought. In addition, issues arose over the validity of the Settlements themselves, which took time to resolve and there was an element of uncertainty as to the state of English law on mistake.
49. It seems that delay, unaccompanied by any prejudice to the respondents, can never disentitle an applicant to relief by way of rectification (see paragraph 5-06 of Rectification, the Modern Law and Practice Governing Claims for Rectification for Mistake by David Hodge QC). There was no prejudice to any of the respondents here and the significance of delay would therefore lie in its effect on the burden of proof which will become more difficult to discharge with the passage of years (see The C Trust [2008] JRC 071 at paragraph 13.) In this case, much of the evidence is documentary and the representors have been able to discharge the burden of proof upon them.
