TRUSTS JERSEY LAW 1984

TRUSTS (JERSEY) LAW 1984 - LEGGE SUI TRUST DEL JERSEY

La legge contiene disposizioni riguardo ai trust, ai trustee e alle persone interessate nell'ambito dei trust e per scopi connessi.

La principale legislazione sui trust di Jersey è la Trusts Law che è supportata da un corpo di giurisprudenza dei tribunali dell'isola.

TRUSTS (JERSEY) LAW 1984 - LEGGE SUI TRUST DEL JERSEY
Revised Edition - 13.875 - Showing the law as at 1 January 2019 - This is a revised edition of the law

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;

  • OFFICIER 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) 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.

(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.

(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 - 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

a) by oral declaration, or

b) by an instrument in writing (including a will or codicil) or

c) 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

(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.

(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.

(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.

(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.

(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).

(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.

(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.

(7) Despite Article 59, this Article applies to trusts whenever constituted or created.

9 - A Powers reserved by settlor

(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.

(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.

(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.

.....

(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.

10 - A Disclaimer of interest

(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.

(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

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

(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

(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

(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

(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.

(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.

(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.

(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

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.

(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.

(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.

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.

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.

(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.

(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.

(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.[

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

(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.

(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.

(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.

(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.

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.

32 - Trustee’s liability to third parties

(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

(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.

(2) Article 43A applies where a trustee resigns, retires, is removed or otherwise ceases to be a trustee.

(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

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.

(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]