The Matter of the Representation of Virtue Trustees (Switzerland) AG and Anor re The C Trust (the Trust) heard in the Royal Court of Jersey relates to a trust where a beneficiary named in the deed was also appointed a protector (by a hand amendment when the deed was executed) where the terms of the deed provide that the protector is an “excluded person.” By virtue of that appointment it was arguable that related beneficiaries were also “excluded persons.”
Rectification was sought to address the mistake. Rectification is not a matter that is taken lightly by the court, and does not allow for a trust deed to be re-written but rather to bring the deed in line with the settlor’s true intensions. As noted at para 19 of the decision:
19. In the English Court of Appeal case of Allnutt and another –v- Wilding and others  EWCA Civ 412 Monery LJ, at paragraph 11, said this:-
The decision usefully canvasses the evidence taken into consideration to determine the deceased settlor’s true intentions, which included a consideration of who distributions were made to. Evidence was given by the Trustee’s director who had the closest involvement with the Trust and who observed that the appointment of the protector had unintended consequences which were “inadvertently inconsistent with both the First Letter of Wishes and the Second Letter of Wishes.”
Perhaps the biggest take home message is the importance of reading and understanding the terms of a trust deed. And in line with the builder’s adage – measure twice, cut once; it is always appropriate to read the trust deed again.
- Representation of Virtue Trustees (Switzerland) AG and Anor re The C Trust 11-June-2018  JRC100
- In Re Madge’s Settlement  JLR Note 16b
- Allnutt and another v Wilding and others  EWCA Civ 412 Monery LJ