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Guernsey Trusts Conference 2015 - Andrew Holden presentation
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blglobal
November 12, 2015
Business
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Guernsey Trusts Conference 2015 - Andrew Holden presentation
Slides from the breakout session of Andrew Holden, Barrister at XXIV Old Buildings
blglobal
November 12, 2015
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Transcript
JERSEY FUNDS FORUM 2014: THE GLOBAL PERSPECTIVE A businesslife.co event
THE REMOVAL OF TRUSTEES AND FIDUCIARIES Are you sitting comfortably (in the ejector seat)? ANDREW HOLDEN Barrister, XXIV Old Buildings, Lincoln’s Inn
© Andrew Holden 2015
3 “I like not that a man should be ambitious
of a trust when he can get nothing but trouble by it” Lord Nottingham Uvedale v Ettrick (1682) 2 Cas in Ch 130, 131 © Andrew Holden 2015 INTRODUCTION
JERSEY FUNDS FORUM 2014: THE GLOBAL PERSPECTIVE A businesslife.co event
• Express power of removal • Court's jurisdiction to remove • Topics: l Basic legal principles l Guernsey law position l Tips for incumbent trustee • Cases – 1 v old and 2 v new! INTRODUCTION © Andrew Holden 2015
JERSEY FUNDS FORUM 2014: THE GLOBAL PERSPECTIVE A businesslife.co event
• Express power of removal • Trusts (Guernsey) Law 2007: “(4) A trustee ceases to be a trustee immediately on – (a) his removal from office by the Royal Court, (b) his resignation taking effect, or (c) the coming into effect of, or the exercise of a power under, a provision in the terms of the trust under or by which he is removed from or otherwise ceases to hold his office” EXPRESS POWER OF REMOVAL © Andrew Holden 2015
JERSEY FUNDS FORUM 2014: THE GLOBAL PERSPECTIVE A businesslife.co event
• Express power in trust instrument • Removal vs replacement • Powerholder: l Protector l Settlor during his lifetime l Beneficiaries EXPRESS POWER OF REMOVAL © Andrew Holden 2015
JERSEY FUNDS FORUM 2014: THE GLOBAL PERSPECTIVE A businesslife.co event
• Limits on exercise of power: l Formalities (deed, writing etc.) l Time limits l Trigger conditions ('refuses or is unfit to act') • Fraud on the power • Duties of powerholder EXPRESS POWER OF REMOVAL © Andrew Holden 2015
JERSEY FUNDS FORUM 2014: THE GLOBAL PERSPECTIVE A businesslife.co event
• Duties of powerholder: l Generally power to appoint trustees is fiduciary power l Fiduciary power = range of obligations: l Good faith l Act rationally l Take into account all and only relevant considerations EXPRESS POWER OF REMOVAL © Andrew Holden 2015
JERSEY FUNDS FORUM 2014: THE GLOBAL PERSPECTIVE A businesslife.co event
• 2 Jersey law trusts • Original protector = Father • Assets = Father's family wealth • Bens = 2 sons and 1 daughter • Letters of wishes: l Take into account Father's wishes l After death, divide into 3 pots RE PIEDMONT & RIVIERA TRUSTS [2015] JRC 196 © Andrew Holden 2015
JERSEY FUNDS FORUM 2014: THE GLOBAL PERSPECTIVE A businesslife.co event
• Father fell out with Daughter • 2010: New letters of wishes: 2 pots! • Jan 2014: Father purports to replace T'ees with Kairos • Feb: T'ee seeks due diligence • Mar: Unsatisfactory responses from Kairos & aggressive exchange • Apr: T'ee applies for directions RE PIEDMONT & RIVIERA TRUSTS [2015] JRC 196 © Andrew Holden 2015
JERSEY FUNDS FORUM 2014: THE GLOBAL PERSPECTIVE A businesslife.co event
• Jun: Father resigns as Protector of R Trust – Sons appointed • Jul: Resigns as Protector of P Trust – Bens appoint Sons • Dec: Sons purport to remove Kairos • Daughter challenges Kairos & Sons' appointments • Father purports to 'withdraw' Kairos' appointment! RE PIEDMONT & RIVIERA TRUSTS [2015] JRC 196 © Andrew Holden 2015
JERSEY FUNDS FORUM 2014: THE GLOBAL PERSPECTIVE A businesslife.co event
• Kairos: Failure to take into account relevant considerations: l Delay in due diligence l No info to show expertise in trust administration l Owned 100% by one individual l No info re insurance cover, capital base l No info re careers / experience of directors l No internet presence l NZ on other side of world make comm more difficult l Took into account irrelevant consideration: l Preferable to move to jurisdiction 'white listed' by Italy – NZ l Wholly irrelevant as bens didn't reside in Italy RE PIEDMONT & RIVIERA TRUSTS [2015] JRC 196 © Andrew Holden 2015
JERSEY FUNDS FORUM 2014: THE GLOBAL PERSPECTIVE A businesslife.co event
• Protectors: Appointment was irrational: l US litigation between Sons and Daughter l Inc. complaint of breach of fiduciary duty l Sons not independent of Father l Signed documents disenfranchising Daughter's shares and land l Sons sided with Father in dispute l Breakdown in relations: Sons helped Father prepare 'General Release' – would have stripped Daughter of rights l Acrimony and lack of communication l Would have led to impossible situation l Regular Court involvement RE PIEDMONT & RIVIERA TRUSTS [2015] JRC 196 © Andrew Holden 2015
JERSEY FUNDS FORUM 2014: THE GLOBAL PERSPECTIVE A businesslife.co event
• Duty to find 'right person for job' – including by beneficiaries • Wide ambit of discretion – but cannot be obviously inappropriate • Key question is effect on administration of trust • Tips for trustees: l Q is whether power exercised properly l Entitled to be satisfied l Reasonable due diligence appropriate l Views of beneficiaries relevant l Application to court in cases of genuine doubt © Andrew Holden 2015 EXPRESS POWER OF REMOVAL
JERSEY FUNDS FORUM 2014: THE GLOBAL PERSPECTIVE A businesslife.co event
• Court's inherent jurisdiction to remove: l s.69(1)(a)(ii) Trusts (Guernsey) Law 2007 l Welfare of beneficiaries l Bases for removal of a trustee: l Misconduct l Conflict of interests l Breakdown in relations with beneficiaries / hostility / 'loss of trust and confidence': Letterstedt v Broers (1884) 9 App Cas 371 © Andrew Holden 2015 REMOVAL BY COURT
JERSEY FUNDS FORUM 2014: THE GLOBAL PERSPECTIVE A businesslife.co event
• Jacob Letterstedt: Swedish immigrant to Cape Colony. Died 1862. • Brewing distiller / malting business - Mariedahl and Cape Town. • Will: l 3 executors: Spengler;; Hederius & 'Board of Executors' l Business to be carried on after death by managers l Profits: 4/6 daughter, 1/6 Mariedahl manager, 1/6 Cape Town manager l Executors to appoint replacement managers © Andrew Holden 2015 LETTERSTEDT v BROERS (1884)
JERSEY FUNDS FORUM 2014: THE GLOBAL PERSPECTIVE A businesslife.co event
• Executors – 3 votes and act by majority • Annual accounts / independent 'commissioners' • D. 1862. Spengler d.1863. Hederius d.1866. • Daughters' guardians in Sweden. • Directors of Board l Manager of Cape Town l Commissioners © Andrew Holden 2015 LETTERSTEDT v BROERS (1884)
JERSEY FUNDS FORUM 2014: THE GLOBAL PERSPECTIVE A businesslife.co event
• Daughter turns 21: l Litigation seeking c.£28,000 (multi million) l Settlement to 31 Dec 1872: £21,000 plus costs l Liquidation accounts • Further claim: l Wide allegations of fraud / breach of duty & challenge to accounts l Application to remove © Andrew Holden 2015 LETTERSTEDT v BROERS (1884)
JERSEY FUNDS FORUM 2014: THE GLOBAL PERSPECTIVE A businesslife.co event
• Privy Council (Lord Blackburne): l Removal of trustees l Cases of misconduct – no hesitation in removal l But not limited to misconduct – key test is welfare of beneficiaries & proper administration of trust l No reported cases because... © Andrew Holden 2015 LETTERSTEDT v BROERS (1884)
“As soon as all questions of character are as far
settled as the nature of the case admits, if it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than that human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee, and if there is no reason to the contrary from the intentions of the framer of the trust to give this trustee a benefit or otherwise, the trustee is always advised by his own counsel to resign, and does so. If, without any reasonable ground, he refused to do so, it seems to their Lordships that the Court might think it proper to remove him;; but cases involving the necessity of deciding this, if they ever arise, do so without getting reported. It is to be lamented that the case was not considered in this light by the parties in the Court below, for, as far as their Lordships can see, the Board would have little or no profit from continuing to be trustees, and as such coming into continual conflict with the appellant and her legal advisers, and would probably have been glad to resign, and get out of an onerous and disagreeable position. But the case was not so treated”. © Andrew Holden 2015 LETTERSTEDT v BROERS (1884)
JERSEY FUNDS FORUM 2014: THE GLOBAL PERSPECTIVE A businesslife.co event
• Board removed as trustees: l Checks and balances intended by Testator failed l Board had included a sum of £4,396 12s. 3d in liquidation accounts: l Had been disallowed. Board not guilty of concealment. l BUT deliberate attempts to “try somehow or other to get remuneration of which they conceive themselves to have been unjustly deprived” l Vexatiously opposed inquiry into accounts © Andrew Holden 2015 LETTERSTEDT v BROERS (1884)
“It is quite true that friction or hostility between trustees
and the immediate possessor of the trust estate is not of itself a reason for the removal of the trustees. But where the hostility is grounded on the mode in which the trust has been administered, where it has been caused wholly or partially by substantial overcharges against the trust estate, it is certainly not to be disregarded” l Possible trust for minors in future l So appropriate in all circumstances to remove l Costs borne by each side © Andrew Holden 2015 LETTERSTEDT v BROERS (1884)
JERSEY FUNDS FORUM 2014: THE GLOBAL PERSPECTIVE A businesslife.co event
• 131 years later in Guernsey... • Removal of a protector • McMahon DB: l Letterstedt v Broers applies to protector in fiduciary position l “it is the welfare of the beneficiaries and the competent administration of the trust in their favour that found the jurisdiction for the removal of a trustee and so, by analogy, a protector. I am satisfied that it is appropriate for the Court to adopt the same approach as a matter of Guernsey law” © Andrew Holden 2015 RE K TRUST (2015)
JERSEY FUNDS FORUM 2014: THE GLOBAL PERSPECTIVE A businesslife.co event
• K Trust settled in 1990 by Swiss domiciled settlor. • Letter of wishes: Wife principal beneficiary • Assets = investments, London property + cash • Original value = >£100m. c.£17m by time of hearing • Original protector = Settlor's financial adviser / friend • Settlor d.2001 • By 2005, relationship between widow and protector breaking down. © Andrew Holden 2015 RE K TRUST (2015)
JERSEY FUNDS FORUM 2014: THE GLOBAL PERSPECTIVE A businesslife.co event
• Numerous requests since 2005 for Protector to resign • 2011: Widow's family (chosen bens) asked for termination of trust • Protector opposed: alleged contingent tax liabilities • Dispute: Did settlor die domiciled in UK or Switzerland? • Consideration of insurance / indemnities etc. • Protector obtained Opinion of Tax Counsel – Settlor domiciled in UK! • DB concluded that Protector should be removed. © Andrew Holden 2015 RE K TRUST (2015)
JERSEY FUNDS FORUM 2014: THE GLOBAL PERSPECTIVE A businesslife.co event
• Reasons for removal: l Protector 'almost a de facto trustee': picked over T'ee decisions with fine-toothed comb l Breakdown in relations l Stalemate in Trust administration l Taking unilateral tax advice potentially damaging to beneficiaries' interests • At hearing, Protector admitted she should resign • Sought permission to retire: “if she is to be pushed, she would like permission to jump first”. © Andrew Holden 2015 RE K TRUST (2015)
JERSEY FUNDS FORUM 2014: THE GLOBAL PERSPECTIVE A businesslife.co event
• Guernsey applies Letterstedt v Broers • Breakdown in relations / loss of trust and confidence not sufficient • “Breakdown +” l Problems or issues in administration of trust l Objective basis for hostility / loss of trust and confidence l Focus on the future © Andrew Holden 2015 REMOVAL BY COURT
JERSEY FUNDS FORUM 2014: THE GLOBAL PERSPECTIVE A businesslife.co event
• Tips for trustees / protectors: l Evaluation by fresh pair of eyes l Good, bad and ugly. l If genuine issues, position may be untenable: l Get best terms available l Request for removal ill-founded / bootstrapping l Middle ground: l 'No fault' removal l Focus on protecting the trust fund © Andrew Holden 2015 REMOVAL BY COURT
© Andrew Holden 2015 THANK YOU
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