A LAW to amend further the Trusts (Jersey) Law 1984

THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following Law –

“47B Articles 47D to 47J: Interpretation

(1)     In Articles 47D to 47J –

(a)     references to a transfer or other disposition of property to a trust, do not include a testamentary disposition;

(b)     ‘power’ includes a discretion as to the way in which an obligation is performed.

(2)     In Articles 47E and 47G, ‘mistake’ includes (but is not limited to) –

(a)     a mistake as to –

(i)      the effect of,

(ii)      any consequences of, or

(iii)     any of the advantages to be gained by,

a transfer or other disposition of property to a trust, or the exercise of a power over or in relation to a trust or trust property;

(b)     a mistake as to a fact existing either before or at the time of, a transfer or other disposition of property to a trust, or the exercise of a power over or in relation to a trust or trust property; or

(c)     a mistake of law including a law of a foreign jurisdiction.

47C   Determination of ‘mistake’

The doctrine of ‘erreur’ in Jersey customary law as applied to the law of contract, shall not apply to any question concerning the meaning of ‘mistake’ for the purposes of determining an application under Article 47E or 47G.

47D   Application of powers under Articles 47E to 47I

Articles 47E to 47I apply in relation to the transfer or other disposition of property to a trust, or the exercise of any power over or in relation to a trust or trust property that occurs either before or after the coming into force of the Trusts (Amendment No. 6) (Jersey) Law 2013[2].

47E   Power to set aside a transfer or disposition of property to a trust due to mistake

(1)     In this paragraph, ‘person exercising a power’ means a person who exercises a power to transfer or make other disposition of property to a trust on behalf of a settlor.

(2)     The court may on the application of any person specified in Article 47I(1), and in the circumstances set out in paragraph (3), declare that a transfer or other disposition of property to a trust –

(a)     by a settlor acting in person (whether alone or with any other settlor); or

(b)     through a person exercising a power,

is voidable and –

(i)      has such effect as the court may determine, or

(ii)      is of no effect from the time of its exercise.

(3)     The circumstances are where the settlor or person exercising a power –

(a)     made a mistake in relation to the transfer or other disposition of property to a trust; and

(b)     would not have made that transfer or other disposition but for that mistake, and

the mistake is of so serious a character as to render it just for the court to make a declaration under this Article.

47F   Power to set aside a transfer or disposition of property to a trust exercised by fiduciary power

(1)     In this paragraph, ‘person exercising a power’ means a person who exercises a power to transfer or make other disposition of property to a trust on behalf of a settlor and who owes a fiduciary duty to the settlor in relation to the exercise of his or her power.

(2)     The court may on the application of any person specified in Article 47I(1), and in the circumstances set out in paragraph (3), declare that a transfer or other disposition of property to a trust by a settlor (whether alone or with any other settlor) through a person exercising a power, is voidable and –

(a)     has such effect as the court may determine, or

(b)     is of no effect from the time of its exercise.

(3)     The circumstances are where, in relation to the exercise of his or her power, the person exercising a power –

(a)     failed to take into account any relevant considerations or took into account irrelevant considerations; and

(b)     would not have exercised the power, or would not have exercised the power in the way it was so exercised, but for that failure to take into account relevant considerations or that taking into account of irrelevant considerations.

(4)     It does not matter whether or not the circumstances set out in paragraph (3) occurred as a result of any lack of care or other fault on the part of the person exercising a power, or on the part of any person giving advice in relation to the exercise of the power.

47G   Power to set aside the exercise of powers in relation to a trust or trust property due to mistake

(1)     In this paragraph, ‘person exercising a power’ means a person who, otherwise than in the capacity of trustee, exercises a power over, or in relation to a trust, or trust property.

(2)     The court may on the application of any person specified in Article 47I(2), and in the circumstances set out in paragraph (3), declare that the exercise of a power by a trustee or a person exercising a power over, or in relation to a trust, or trust property, is voidable and –

(a)     has such effect as the court may determine; or

(b)     is of no effect from the time of its exercise.

(3)     The circumstances are where the trustee or person exercising a power –

(a)     made a mistake in relation to the exercise of his or her power; and

(b)     would not have exercised the power, or would not have exercised the power in the way it was so exercised, but for that mistake, and

the mistake is of so serious a character as to render it just for the court to make a declaration under this Article.

47H   Power to set aside the exercise of fiduciary powers in relation to a trust or trust property

(1)     In this paragraph, ‘person exercising a power’ means a person who, otherwise than in the capacity of trustee, exercises a power over, or in relation to a trust, or trust property and who owes a fiduciary duty to a beneficiary in relation to the exercise of that power.

(2)     The court may on the application of any person specified in Article 47I(2), and in the circumstances set out in paragraph (3), declare that the exercise of a power by a trustee or a person exercising a power over, or in relation to a trust, or trust property, is voidable and –

(a)     has such effect as the court may determine; or

(b)     is of no effect from the time of its exercise.

(3)     The circumstances are where, in relation to the exercise of his or her power, the trustee or person exercising a power –

(a)     failed to take into account any relevant considerations or took into account irrelevant considerations; and

(a)     would not have exercised the power, or would not have exercised the power in the way it was so exercised, but for that failure to take into account relevant considerations, or that taking into account of irrelevant considerations.

(4)     It does not matter whether or not the circumstances set out in paragraph (3) occurred as a result of any lack of care or other fault on the part of the trustee or person exercising a power, or on the part of any person giving advice in relation to the exercise of the power.

47I    Applications and orders under Articles 47E to 47H

(1)     An application under Article 47E(2) or 47F(2) may be made by any settlor or any of his or her personal representatives or successors in title.

(2)     An application under Article 47G(2) or 47H(2) may be made by –

(a)     the trustee who exercised the power concerned, or the person exercising a power (as the case may be);

(b)     any other trustee;

(c)     a beneficiary or enforcer;

(d)     the Attorney General in relation to a trust containing charitable trusts, powers or provisions;

(e)     any other person with leave of the court.

(3)     Without prejudice to Article 51 and subject to paragraph (4), the court may, consequential upon a declaration made under any of Articles 47E to 47H, make such order as it thinks fit.

(4)     No order may be made under paragraph (3) which would prejudice any bona fide purchaser for value of any trust property without notice of the matters which render the transfer or other disposition of property to a trust, or the exercise of any power over or in relation to a trust or trust property, voidable.

47J    Savings in respect of applications made under Articles 47E to 47H

Nothing in Articles 47E to 47H shall prejudice –

(a)     any application for a declaration that a transfer or other disposition of property to a trust, or the exercise of any power over or in relation to a trust or trust property, is void or voidable on grounds other than those specified in Articles 47E to 47H; or

(b)     any personal remedy which may be available against a trustee or any other person.”.