(1) The original case and the 'rule' in England The background facts to the Court of Appeal decision in Re Hastings-Bass may be summarised with reference to two settlements.75 The '1947 settlement' was established for the benefit of Captain Peter Hastings-Bass on his marriage and conferred a life interest on him with remainder to his children and remoter issue, as he might appoint.
In 1948 a son William was born, who is now the seventeenth Earl of Huntingdon. In 1957 Captain Hastings-Bass's sister made a settlement for William for life, with remainder to his widow, children, and remoter issue (the '1957 settlement'). In 1958 Captain Hastings-Bass exercised his power of appointment in favour of William so that the fund of the 1947 settlement would be transferred to him after Captain Hastings-Bass's death and upon William attaining the age of 25. Shortly thereafter the trustees of the 1947 settlement purported to advance to William £50,000 sterling out of the funds of the 1947 settlement. They did this by appointing this amount to the trustees of the 1957 settlement.
There was no perpetuities problem at the time the advancement was made, but Captain Hastings-Bass died just a few months before the House of Lords established in Pilkington v Inland Revenue Commissioners that, in a case involving a sub-settlement, the relevant perpetuity period is that of the head settlement.76 As to the Hastings-Bass case, since William had not been born on the date of the 1947 settlement, the appointment to the 1957 settlement was valid in respect of his life interest but the appointments to his descendants were void for perpetuity.
Accordingly, the purported exercise of the trustees' power of advancement under section 32 of the Trustee Act 1925 had only partly achieved the intended result of benefiting William. The Inland Revenue contended that the failure of the interests arising after William's death implied that the advancement was void as a whole, so that estate duty at the then applicable rate of 73 percent was due on the purportedly advanced fund, which would have left William £13,500 out of the intended £50,000. Of course, one of the main reasons for the 1958 appointment had been to mitigate the estate duty liability on Captain Hastings-Bass's estate.
At first instance Plowman J found for the Revenue.77 On appeal, the effects of the exercise of the trustees' statutory power of advancement under section 32 of the Trustee Act 1925 were analysed in terms of 'a bundle of benefits of distinct characters' rather than as 'a benefit of a monolithic character'.78
(2) The making of the 'rule'
The first reported reference to the decision in Hastings-Bass appears to have been made in Turner v Turner,79 a case where certain appointments made by the trustees were set aside by court order, a common feature of the applications of the so-called 'rule'. It was followed by courts both in England and offshore.80
(3) Unintended tax consequences and the operation of the 'rule'
The first case in which the 'rule in Hastings-Bass was applied to correct unintended tax consequences was Green v Cobham.81 The case concerned a BVI will trust established by a settler who had been resident, ordinarily resident, and domiciled there for a relevant period before he died. Six of the ten trustees were either resident outside the UK or treated as not being resident under the capital gains tax legislation then in force.82 In particular, a UK-resident solicitor was treated as not resident in the UK for the purposes of that trust, so long as he was associated with his law firm.
When he retired from the practice he was not replaced as a trustee, and as a result the will trust became UK-resident for capital gains tax purposes. In ignorance of that circumstance, the trustees appointed part of the trust funds to new accumulation and maintenance trusts in favour of the settler's grandchildren, all residents in the UK. As the trust had by then become liable to capital gains tax in the UK, a substantial case arose since the trust fund was 'pregnant' with some £35m sterling of unrealised capital gains. Parker J recognised it as 'a clear case for the application of the Hastings-Bass principle'.
In Breadner v Granville-Grossman,83 a case decided about six months after Green v Cobham,84 the Hastings-Bass relief was not approved, among other reasons, because of the long period that had elapsed since the trustees had realised their mistake.85 The existence of a 'Hastings-Bass principle' and its application was asserted by Mann J in Burrell v Burrell.86
A comprehensive summary of the 'rule in Hastings-Bass', given in Mettoy Pension Trustees Ltd v Evans,87 was provided in Sieff v Fox.88 The background facts are similar to those in Re Hastings-Bass of 30 years earlier.89 The 'rule in Hastings-Bass' was best restated by Lloyd LJ in Sieff v Fox.90 This statement is quite similar to that in Mettoy Pension Trustees Limited v Evans.91 Lloyd LJ did clarify some aspects that had given rise to diverging approaches.
He held that: (a) The appropriate test for deciding whether to set aside a voluntary act by the trustees is to ascertain that the trustees would have acted differently had they taken all the required considerations into account.92 (b) The additional requirement brought forward was rejected93 by Lightman J in Abacus Trust Co (Isle of Man) Ltd v Barr (that a fault or breach of trust on the part of the trustee must be found in order for an act to be set aside).94 (c) The act to be set aside is Voidable' as opposed to Void'.95
(4) Outlying decisions and the revenue's view
In Sieff v Fox,96 Lloyd LJ concluded that it would be tempting to produce a situation where the Court of Appeal would have to consider the scope of the 'Hastings-Bass principle'. This opportunity was recently missed as the appeal from the decision in Smithson v Hamilton97 was settled by compromise on the morning of the day on which the hearing had been scheduled.98 As there appeared to be little scope to seek the remedy of rectification, counsel for the employer-settler and for the trustees brought a claim under the 'Hastings-Bass principle'. The case was thus brought in their interests, not in that of the member-beneficiaries. The remedy was denied as Sir Andrew Park J held that there is no scope for the 'rule in Hastings-Bass' to apply to a deed executed by the trustees with the settler, to whom they owe no fiduciary obligations and whom they may assume to have duly taken account of considerations protecting his interests.99
The decision in Breadner v Granville-Grossman is an 'outlier' to what has become the main-stream application of the 'rule in Hastings-Bass', in at least two respects. On one hand, the subsequent English decision in Abacus Trust Company (Isle of Man) Ltd v NSPCC.100 On the other, as a policy issue, one of the reasons for a relatively generous application of the 'rule', as expressly stated in some offshore court decisions, is to avoid this kind of litigation between the beneficiaries, the trustees, and their tax advisors.101
Another 'outlying' decision attempting to rationalise and to restrict the scope of the 'rule in Hastings-Bass is Abacus Trust Co (Isle of Man) Ltd v Barr,102 The relevant issue was the settler's intention to have 40 per cent of the trust fund appointed on discretionary trusts for his sons. In a mistaken communication with an advisor of the settler's, the trustees were in fact directed to appoint 60 per cent of the fund. Lightman J considered the application of the 'rule in Hastings-Bass' and added two qualifications to it, namely (a) that some fault or breach of trust on the part of the trustees, or their agents or advisors, must be found in order for the 'rule' to afford protection to the beneficiaries, and (b) that the exercise of the trustees' discretion must be in circumstances where the 'rule' might apply are voidable and not void. Both requirements were discussed in some detail by Lloyd LJ in Sieff v Fox.103 The main elements of the Revenue's view on the application of the 'Hastings-Bass principle' are:
(a) A formulation of the statement in Sieff v Fox,104 and in turn deriving from the corresponding statement in Mettoy Penion Trustees Ltd v Evans,105 differing by the indication that the court 'may', as opposed to 'will', interfere in the relevant circumstances.
(b) A suggestion that the 'principle' should not apply to cases such as Abacus Trust Company (Isle of Man) Ltd v NSPCC,106 where the trustees received proper tax advice and then failed to carry out the transaction in accordance with it.
(c) As regards the qualifications brought forward by Lightman J in Abacus Trust Co (Isle of Man) Ltd v Barr,107 HM Revenue & Customs do not view a:
E. Offshore applications
(1) The 'rule' in leading offshore jurisdictions
The first reported application of the 'rule in Hastings-Bass' is the Jersey Royal Court decision In re Green GLG Trust,108 the facts of which referred to a 'flip-flop' scheme similar to that in Abacus Trust Company (Isle of Man) Ltd v NSPCC.109 The Jersey Royal Court's Deputy Bailiff Birt, after a review of the relevant English precedents, agreed to set aside the appointments.110
In Re DSL (R) Ltd,111 the Jersey Royal Court referred to the decision in Sieff v Fox as it had to decide on an English law remuneration trust established by a Scottish company and administered by a Jersey resident trustee, who brought the representation.112 A similar approach had been followed in Barclays Private Bank and Trust (Cayman) Ltd v Chamberlain.113 The facts concerned a 'flip-flop' scheme similar to the one considered in the Jersey decision In re Green GLG Trust.114 The 'rule in Hastings-Bass' was applied by Smellie CJ under Cayman law in the subsequent decision in A v Rothschild Trust (Cayman) Ltd 115 The case concerned the resettlement of two Cayman trusts on the settler (who was also a beneficiary) becoming a US resident for tax purposes. The resettlement-or indeed 'restatement'-was executed after US tax advice that turned out to be incorrect, and did in fact trigger rather than avoid the tax consequences it was meant to address.
The settler and other beneficiaries applied to have the trustee's action set aside. Chief Justice Anthony Smellie reviewed the 'principle in Hastings-Bass following the relevant English precedents up to its formulation in Sieff v Fox,116 and spelt out its rationale.117 The remedy was granted 'notwithstanding the fact that the beneficiaries may have other recourse available to them against the ill-advised or mistaken trustees or their advisors'.118 The formulation of the 'Hastings-Bass principle' under Cayman law according to this judgement does not require a finding of a breach of trust, unlike Abacus Trust Co (Isle of Man) Ltd v Ban.119
(2) Extending the scope The generous approach adopted by the court in these cases effectively extended the scope for the application of the 'rule' and provided increased certainty as to its operation in Jersey. The cases are: Re the Winton Investment Trust,120 Re the Howe Family No 1 Trust,121 Re Vistra Trust Company (Jersey) Ltd,122 and Re Seaton Trustees Ltd 123 To this effect the Jersey Royal Court followed the approach of the Cayman Grand Court in Barclays Private Bank and Trust (Cayman) Ltd v Chamberlain,124 a course that would not be followed a few months later by the English High Court in Smithson v Hamilton.125.
The key to this preliminary question was the circumstance that the trustee had accepted the deferred compensation 'points' with a view to entering into the relevant notations and assignment agreements, under which it undertook certain obligations for a valuable consideration. Hence, in Commissioner Clyde-Smith's words, 'the trustee in the case did in fact act under a discretion and was not merely accepting an addition to the WI Trust'.126 The court was requested to apply the 'Hastings-Bass principle' to administrative as opposed to dispositive powers. Following the Cayman precedent referred to above and the Jersey decision in Re RASI Trust (where the Royal Court had in fact applied Cook Islands law),127 the courtier Commissioner Clyde-Smith felt that it could not 'see any reason in principle to distinguish between dispositive and administrative discretions'.128
The background facts to Re the Howe Family No 1 Trust129 are those of a 'flip flop' scheme similar to that of In re Green GLG Trust.130 The first application of 'Hastings-Bass decision' in Jersey, was an example, and the same was also considered in the Cayman case of Barclays Private Bank and Trust (Cayman) Ltd v Chamberlain.131
The case of Re Vistra Trust Company (Jersey) Ltd132 concerned the conversion of an interest-in-possession trust into a discretionary one, with a significant inheritance tax liability to the life tenant. As in the Re the Howe Family No 1 Trust case referred to above, a successor trustee realised that its predecessor had acted without obtaining tax advice and succeeded in having the deed of variation set aside.
Three general issues concerning the operation of the 'rule in Hastings-Bass' were considered in the recent Jersey decisions referred to in the paragraphs above. First, the court was inclined to prefer the more restrictive 'would' test, ie it had to be satisfied that the trustees 'would' have acted differently had they have taken consideration of all relevant facts into account, rather than simply that they 'might' have done so.
This was not a binding constraint however, since the 'would' test was satisfied in all the cases. Second, the issue as to whether the relevant transactions were void ab initio or voidable was considered but no necessity it was felt to determine it, since the court was prepared to issue orders setting aside the trustees' discretions with retrospective effect, or to declare that certain investments were held on bare trust. Third, in all its pronouncements the Jersey Royal Court rejected the requirement for a fault by the trustee that the English decision m Abacus Trust Co (Isle of Man) Ltd v Barr proposed.133
F. A temporary conclusion The recent judicial developments onshore (ie essentially in England) and offshore appear to point to two emerging versions of the 'rule in Hastings-Bass'.
The English version, as it currently stands, is still surrounded with some degree of uncertainty as to the scope of its application, and as to some basic issues such as the 'would-might' and the 'Void-voidable' tests. In contrast, a bold approach has been adopted by the courts of some leading offshore trust jurisdictions, most notably the Jersey Royal Court, in extending the range of situations where relief is accorded for the ill-advised exercise of a trustee's discretion.
The 'rule' has been declared to be part of the law of such offshore jurisdictions as Jersey, the Cayman Islands, and - in a mediated way - the BVI, the Cook Islands, and the Isle of Man. It can be expected that many other offshore jurisdictions will follow the same path as soon as an occasion lends itself to the application of the 'rule'. Indeed, local courts' reliability in this particular respect may well come to be viewed as one of the factors defining the attractiveness of a trust jurisdiction.
Accordingly, should the 'rule in Hastings-Bass end up being circumscribed or indeed eliminated by a Court of Appeal decision in England, it may not be unthinkable that it will start a new life as a statutory provision in some relevant offshore jurisdiction.
1. Subject to the criteria laid down in the trust instrument to the provisions of governing law.
2. P Matthews, The Doctrine of Fraud on a Power, PCB (2007), 131-142 and 191-195.
3. They essentially boil down to the principle that powers must be exercised for the precise purpose for which they were conferred on the power holder (or 'donee' of a power).
4. Re Hasting-Bass (1975) Ch 25.
5. For these reasons, the trustee's discretion is mitigated by the presence of an officer capable of directing and controlling the exercise of trustee powers, such as the trust protector. At the same time, settlers might deem it appropriate to record their wishes in a non-binding letter handed over to the trustees, or ask trustees to draw up a memorandum and keep it on file for future reference.
a. The fiduciary nature of a dispositive power, however, imposes on the trustee the duty to consider whether to exercise it.
6. A power may be exercised by the trustee, who is otherwise under no obligation to exercise it.
7. Re Manisty's Settlement, 1 Ch 17 (1974).
8. In Exp Viscount Wimborne, JJ 17 (1983).
9. Gartside v Inland Revenue, AC 553, 607 (1968).
10. In re Gulbenkian, All ER 785 (1968).
11. Section 49 of the Trusts (Guernsey) Law 2007.
12. Section 42 of the Belize, Trusts Act 1992.
13. Turks and Caicos, Trusts Ordinance 1990, s 38.
14. Section 39 of the Labuan, Offshore Trusts Act 1996.
15. Art 27, Malta, Trusts and Trustees Act 1988 (as amended, 2004).
16. Section 47 of the Mauritius, Trusts Act 2001: A relevant implication of these statutory provisions is that an 'appointor' other than the trustee may be nominated under a settlement governed by the laws of the jurisdictions referred to above.
17. Gartside v Inland Revenue Commissioners, AC 553,607 (1968).
18. Johns v Johns, 3 NZLR 202 (2004).
19. Hunt v Muollo, 2 NZLR 322 (2003), paras 11 and 13 (passim).
20. Schmidt v Rosewood Trust Limited, 2 AC 709 (2003). The principle that right to compel proper administration of the trust and, to that effect, to receive adequate information subject to any restrictions imposed by the terms of the trust or by law was upheld
21. Freeman v Ansbacher, JRC 003 (2009).
22. Re Manisty's Settlement, l Ch l7 (1974).
23. McPhail v Doulton, AC 424 (1971).
24. A list of the states that had enacted the UTC.
25. Where the trustee has abused the discretion.
26. In Re Joycey, 2 Ch 115 (1915).
27. Wilson v Turner, Ch D 521 (1883).
28. The main provisions at subsection 31(1) read as follows:
Where any property is held by trustees in trust for any person for any interest whatsoever, whether vested or contingent, then, subject to any prior interests or charges affecting that property-
(i) during the infancy of any such person, if his interest so long continues, the trustees may, at their sole discretion, pay to his parent or guardian, if any, or otherwise apply for or towards his maintenance, education, or benefit, the whole or such part, if any, of the income of that property as may, in all the circumstances, be reasonable, whether or not there is-
(a) any other fund applicable to the same purpose; or
(b) any person bound by law to provide for his maintenance and education; and
(ii) if such person on attaining the age of eighteen years has not yet a vested interest in such income, the trustees shall thenceforth pay the income of that property and of any accretion thereto under subsection (2) of this section to him, until he either attains a vested interest therein or dies, or until failure of his interest.
The rule under section 31(1) of the Trustee Act 1925 allows trustees to pay or apply income towards the 'maintenance, education, or benefit' of a beneficiary during minority.
29. Section 32(1)(c) of the Trustees Act 1925.
30. Kain v Mutton, NZSC 6l (2008).
31. Section 37 and 38 of the Bahamas, Trustee Act 1989.
32. Section 23 and 24 of the Bermuda, Trustee Act 1975.
33. Section 32 and 33 of the BVI, Trustee Ordinance 1961.
34. Section 32 and 33 of the Cayman Islands, Trusts Law (2007 Revision).
35. Section 33 and 34 of the Hong Kong, Trustee Ordinance.
36. Section 31 and 32 of the Isle of Man, Trustee Act 1961.
37. Section 40 and 41 of the New Zealand, Trustee Act 1956.
38. Section 33 and 34 of the Singapore, Trustees Act.
39. Section 11 of the Gibraltar, Trustees Ordinance.
40. CD (a minor) v O WTLR 751 (2004).
41. (1) The terms of a trust may direct or authorise the accumulation for any period of all or part of the income of the trust. For the avoidance of doubt, no rule limiting the period of accumulations or any analogous rule applies to a trust or to any advancement, appointment, payment or application of assets from a trust.
(2) Subject to subsection (3), income which is not distributed shall be accumulated.
(3) Subject to the terms of the trust and to any prior interest of charge affecting the trust property, the trustees may-
(a) where a beneficiary is a minor (whether or not his interest is vested), apply the income attributable to his interest, or any part of that income, to or for his maintenance, education or other benefit,
(b) advance or apply for the benefit of a beneficiary part of the trust property prior to the happening of the event on which he is to become absolutely entitled thereto.
(4) Subject to the terms of the trust-
(a) any trust property advanced or applied under this section shall be brought into account in determining the beneficiary's share in the trust property, and
(b) no part of the trust property so advanced or applied shall exceed the beneficiary's vested, presumptive or contingent share in the trust property.
(5) The receipt of a guardian of a beneficiary who is a minor or a person under legal disability is a sufficient discharge to the trustees for a payment made to the beneficiary or for his benefit.
42. Section 43 of the Trusts (Guernsey) Law 1989.
43. Section 38 of the Labuan, Offshore Trusts Act 1996.
44. Art 26, Malta, Trusts and Trustees Act 1988 (as amended, 2004).
45. Section 46 of the Mauritius, Trusts Act 2001.
46. Turks and Caicos, Trusts Ordinance 1990, s 37.
47. Section 38 and 39 of the Belize, Trusts Act 1992.
48. The decision in Price v Williams-Wynn, WTI.R 1633 (2006), mentioned at paragraph 1.286, is an example to this effect, as the court agreed to rectify a trust instrument so as to exclude the operation of section 31 of the Trustee Act 1925 and of its unfavourable tax implications in that context.
49. Vatcher v Paull, AC 372 (1915).
50. Cowan v Scargil, 1 Ch 270 (1985).
51. Wong v Burt, 1 NZLR 91 (CA) (2005).
52. Kain v Hutton, NZSC 61 (2008).
53. Wong v Burt, 1 NZLR 91 (CA) (2005).
54. Kain v Hutton, NZCA 199 (2007).
55. NZSC 61 (2008).
56. Id. 55.
57. Wong v Burt, 1 NZLR 91 (CA) (2005).
58. Finch v Wachovia Band and Trust Co, NA 577 SE2d 306 (NCCt App 2003): The court concluded that it was at the trustee's sole discretion to disburse any funds from the trust corpus for the life tenant's 'gifting desires'.
59. Wong v Burt, 1 NZLR 91 (CA) (2005): A different situation in which the exercise of the trustee's discretion might be challenged as a 'fraud on a power' is the application of trust assets 'for the benefit' of a beneficiary, but in the form of a material payment to a non-beneficiary.
60. Brown v Miller 2008 Fla App LEXIS 16102; 33 Fla L Weekly D 2433.
61. Lowther v Bentinck, LR 19Eq l66 (1874).
62. Klug v Klug, 2 Ch 67 (1918).
63. In this case the mother was held not to have exercised her discretion properly.
64. Re Esteem Settlement, JI.R 7 (2001).
65. Abacus (CI) Limited trustee of the Esteem Settlement and the Number 52 Trust and Grupo Torras SA v Sheikh Fahad Mohammed al Sabah, unreported, 3 Trusts e attivita fiduciaries 434 (2002).
66. JRC 140 (2009).
67. In DG, AN and TTL and TT Limited v WM and Others, 1 ELR 955 (1966).
68. Re Clare's Settlement, EWHC 2706 (Ch) (2005): A leading precedent is In re Clare's Settlement Trusts, concerning the exercise of a power of advancement conferred under the terms of the trust to fund a payment to a charitable foundation for which a beneficiary felt morally obliged to provide. It was found that the notion of 'benefit' should not be restricted to the improvement of the material situation of a beneficiary, but should extend to the discharge of social and moral obligations.
69. Re Hampden's Settlement, TR 177 (1977).
70. Netherton v Netherton, WTLR 1171 (2000).
71. Re X Trust, JLR 377 (2002).
72. J v M, JLR 330 (2002). The issue of a trust fund as a 'resource' available to a spouse is discussed at paragraphs 1.135-148.
73. Re Hastings-Bass, Ch 25 (1975): To be precise, the 'rule in Hastings-Bass' is a different equitable remedy from variation and rectification. Rectification is the remedy available when a document fails to reflect the intentions of the parties that executed it. In contrast, an order of variation may bring a trust to an end or let it evolve in a way that can benefit any of the persons whom the court has jurisdiction to protect under the Variation of Trusts Act 1958 or any of its offshore descendants.
74. Most recently, Lord Neuberger of Abbotsbury, 'Aspects of the law of mistake: Re Hastings-Bass' 15 Trusts and Trustees 4, 189 (2009); T Molloy QC, 'What really is the rule in Hastings-Bass?', Id. 200.
75. Re Hastings-Bass, Ch 25 (1975).
76. Pilkington v Inland Revenue Commissioners, AC 612 (1964).
77. Hastings-Bass v Commissioners of Inland Revenue 14 Trusts and Trustees 1, 60 (2008). The unreported judgement, which was handed down on 2 November 1972, is published as an appendix to T Molloy QC, 'Hastings-Bass: the true and the spurious', Id. 26.
78. Re Hastings-Bass, Ch25,41 (1975).
79. Turner v Turner, Ch 100 (1984).
80. Mettoy Pension Trustees Ltd v Evans, 1 WLR 1587 (1990).
81. Green v Cobham, WTLR 1101 (2000).
82. Section 69(2) Taxation of Chargeable Gains Act 1992:
"a person carrying on a business which consists of or includes the management of trusts, and acting as trustee of a trust in the course of that business, shall be treated in relation to that trust as not resident in the United Kingdom if the whole of the settled property consists of or derives from property provided by a person not at the time (or, in the case of a trust arising under a testamentary disposition or on an intestacy or partial intestacy, at his death) domiciled, resident or ordinarily resident in the United Kingdom, and if in such a case the trustees or a majority of them are or are treated to in relation to that trust as not resident in the United Kingdom, the general administration of the trust shall be treated as ordinarily carried on outside the United Kingdom".
83. Breadner v Granville-Grossman, CH 523 (2001).
84. Green v Cobham, WTLR 1101 (2000).
85. WTLR 953 (2001): Another application of the 'rule in Hastings-Bass was provided by Patten J in Abacus Trust Company (Isle of Man) Limited v National Society for the Prevention of Cruelty to Children (NSPCC).
86. Burrell v Burrell, WTLR 313 (2005).
87. Mettoy Pension Trustees Ltd v Evans, 1WLR 1587 (1990).
88. Sieff v Fox, 1 WLR 3811 (2005).
89. Hasting-Bass, Id. 4.
90. Sieff v Fox, 1WLR 3811,3836 (2005): The best formulation of the principle seems to me to be this. Where a trustee acts under a discretion given to him by the terms of the trust, but the effect of the exercise is different from that which he intended, the court will interfere with his action if it is clear that he would not have acted as he did had he not failed to take into account considerations which he ought to have taken into account, or taken into account considerations which he ought not to have taken into account.
91. Mettoy Pension Trustees Limited v Evans, 1 WLR 1587 (1990).
92. 1 WLR 3811 (2005), para 119.
93. Id. 93.
94. Lightman J in Abacus Trust Co (Isle of Man) Ltd v Barr, WTLR 149 (2003).
95. (2005) 1 WLR 3811, para 81.
96. Id. 88
97. Smithson v Hamilton, 1 WLR 1453 (2008).
98. Smithson v Hamilton, F.WCA Civ 996 (23 July 2008).
99. 1 WLR 1453 (2008), para 90.
100. Abacus Trust Company (Isle of Man) Ltd v NSPCC, WTLR 953 (2001).
101. Cf for example, A v Rothschild Trust (Cayman) Ltd, CILR 485 (2004-2005) and Re Seaton Trustees ltd, JRC 050 (2009).
102. Abacus Trust Co (Isle of Man) Ltd v Barr, WTLR 149 (2003).
103. Sieff v Fox, Id. 88.
104. Id. 88.
105. Mettoy Penion Trustees Ltd v Evans, 1 WLR 1587, 1621 (1990).
106. Abacus Trust Company (Isle of Man) Ltd v NSPCC, WTLR 953 (2001).
107. Abacus Trust Co (Isle of Man) Ltd v Barr, WTLR 149 (2003).
108. Re Green GLG Trust, JLR 571 (2002).
109. Abacus Trust Company (Isle of Man) Ltd v NSPCC, WTLR 953 (2001).
110. Re Green GLG Trust, JLR 571, 581 (2002).
111. Re DSL (R) Ltd, JRC 251 (2007).
112. Sieff v Fox, 1 WLR 3811 (2005). The settlement comprised two shops in Scotland. An issue arose, as the shareholders and directors of the settler company, who were not included under the settlement, realised that they could not receive interest-free, unsecured loans from the trustee. That would have amounted to a benefit and was prohibited, beneficiaries had no claims against the trustee insofar as they had received all the yet they had been advised that such a facility would be avail able under the settlement. The Royal Court applied English law and, after verifying that the contractual remuneration they had been entitled to, it was satisfied that the settlement as well as the related assignments of property to the trustee could be set aside on grounds of mistake.
113. Barclays Private Bank and Trust (Cayman) Ltd v Chamberlain, 9ITELR 302 (2004).
114. Id. 110.
115. A v Rothschild Trust (Cayman) Ltd, CILR 485 (2004-05).
116. Id. 88.
117. CILR 485, 490 (2004-05).
118. Id. 102.
119. Id. 102.
120. Re the Winton Investment Trust, JRC 206 (2007), 11 ITELR 1 (2008).
121. Re the Howe Family No 1 Trust, JRC 248 (2007), 11 ITELR 14 (2008).
122. Re Vistra Trust Company (Jersey) Ltd, JRC 111 (2008).
123. Re Seaton Trustees Ltd, JRC 050 (2009).
124. Barclays Private Bank and Trust (Cayman) Ltd v Chamberlain, 9 ITELR 302 (2004).
125. Smithson v Hamilton, 1 WLR 1453 (2008).
126. 11 ITELR 1 (2008), 9 para 15.
127. 9 ITELR 798 (2006).
128. Re WI Trust, 11 ITELR 1 (2006), 9 para 16.
129. Re the Howe Family No 1 Trust, JRC 248 (2007), 11 ITELR 14 (2008).
130. Re Green GLG Trust, id. 110.
131. Barclays Private Bank and Trust (Cayman) Ltd v Chamberlain, 9 ITELR 302 (2004).
132. Re Vistra Trust Company (Jersey) Ltd, JRC 111 (2008).
133. Abacus Trust Co (Isle of Man) Ltd v Barr, Id. 102.
(Concluded)
(The writer is an advocate and is currently working as an associate with Azim-ud-Din Law Associates)
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