Trusts (Amendment No. 5) (Jersey) Law 2012
A LAW to amend further the Trusts (Jersey)
Law 1984.
Adopted by the
States 3rd November 2011
Sanctioned by
Order of Her Majesty in Council 17th October 2012
Registered by the
Royal Court 26th
October 2012
THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have
adopted the following Law –
1 Interpretation
In this Law, “principal Law” means the Trusts (Jersey)
Law 1984[1].
2 Article 1
amended
In Article 1(1) of the principal Law –
(a) after
the definition “personal representative” there shall be inserted
the following definition –
“ ‘professional trustee’ means a trustee who
is registered under Article 9 of the Financial Services (Jersey) Law 1998[2], by the Jersey Financial
Services Commission, to carry on trust company business within the meaning of Article 2(3)
of that Law;”;
(b) after
the definition “property” there shall be inserted the following
definition –
“ ‘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;”.
3 Article 9
amended
(1) In Article 9(1)
of the principal Law –
(a) in
sub-paragraph (d), the word “or” following the semicolon shall
be deleted;
(b) after
sub-paragraph (e) there shall be added the following sub-paragraphs –
“(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,”.
(2) In Article 9(2)(b)
of the principal Law, the words “to the settlor” shall be deleted.
(3) After
Article 9(2) of the principal Law there shall be inserted the following
paragraph –
“(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, affect the recognition of the law of
its place of incorporation;
(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.”.
(4) For
Article 9(3) of the principal Law there shall be substituted the following
paragraphs –
“(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).”.
(5) For
Article 9(4) of the principal Law there shall be substituted the following
paragraph –
(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.”.
(6) In Article 9(6)
of the principal Law, for the definition “personal relationship” there
shall be substituted the following definition –
“ ‘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 or adoption (whether or not the marriage
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
or husband and wife; 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.”.
4 Article 9A
amended
For Article 9A(2)(e) of the principal Law there shall be
substituted the following sub-paragraph –
“(e) to appoint or remove any
trustee, enforcer or beneficiary, or any other person who holds a power,
discretion or right in connection with the trust or in relation to trust
property;”.
5 Article 26
amended
After Article 26(1) of the principal Law there shall be inserted
the following paragraph –
“(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.”.
6 Article 31
amended
After Article 31(2) of the principal Law there shall be added
the following paragraph –
“(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.”.
7 Article 34
amended
After Article 34(2) of the principal Law there shall be
inserted the following paragraph –
“(2A) If the provision for security to which paragraph (2)
refers is extended or renewed by a contract, or other arrangement, to which the
trustee who resigns, retires or is removed is not party, and –
(a) the contract or other arrangement expressly
provides that the trustee may in his or her own right enforce a term of the
contract or other arrangement; or
(b) a term of the contract or other arrangement purports
to confer a benefit on the trustee,
and in either case the
contract or other arrangement expressly identifies the trustee, the trustee may
enforce that term in his or her own right.”.
8 Article 57
amended
In Article 57 of the principal Law, for the paragraphs
following paragraph (1) there shall be substituted the following paragraphs –
“(2) Where paragraph (1) does
not apply, the period within which an action founded on breach of trust may be
brought against a trustee by a beneficiary is 3 years from –
(a) the date of delivery of the final accounts
to the beneficiary; or
(b) the date on which the beneficiary first has
knowledge of the breach of trust,
whichever is earlier.
(3) Where paragraph (1) does not apply but,
when the breach occurs the beneficiary –
(a) is a minor;
(b) is an interdict; or
(c) is under any other legal disability,
the period to which paragraph (2)
refers shall not begin to run before the beneficiary ceases to be a minor or interdict
or under that other legal disability (as the case may be), or sooner dies.
(3A) Where paragraph (1) does not apply, the period
within which an action founded on breach of trust may be brought against a trustee
by an enforcer is 3 years from –
(a) the date of delivery of the final accounts
to the enforcer; or
(b) the date on which the enforcer first has
knowledge of the breach of trust,
whichever is earlier.
(3B) Where paragraph (1) does not apply, the period
within which an action founded on breach of trust may be brought against a former
trustee by a trustee is 3 years from the date on which the former trustee
ceased to be a trustee.
(3C) Where paragraph (1) does not apply, no action
founded on breach of trust may in any event be brought against a trustee by any
person after the expiry of the period of 21 years following the occurrence
of the breach.
(4) This Article does not apply to a foreign
trust whose proper law is the law of a jurisdiction to which the Convention on
the law applicable to trusts and on their recognition, signed at The Hague on 20th
October 1984, for the time being extends.”.
9 Citation
and commencement
(1) This
Law may be cited as the Trusts (Amendment No. 5) (Jersey) Law 2012.
(2) This
Law shall come into force 7 days after it is registered.
a.h. harris
Deputy Greffier of the States