Bermuda Judgment Highlights 2017 – Trust Cases

About Louise CharlesonLouise Charleson

Louise Charleson is a Senior Associate in the Dispute Resolution Group. She has extensive experience in advising both local and international clients on a wide range of commercial litigation and dispute resolution matters including high-value trust disputes and restructures, cases involving telecommunications and regulatory issues, professional negligence, policy coverage and general contractual disputes.

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Church Bay Trust Co. Ltd. v Her Majesty’s Attorney General for Bermuda [2017] SC (Bda) 34 Civ (1 May 2017)
In this case, the Plaintiff Trustee sought rectification of a Settlement on the grounds of mistake as the terms of the Trust Deed conferred a power upon the Trustee to add and exclude beneficiaries only during the lifetime of the Settlor. The Court held that the quality of the evidence supporting the mistake was very high because it was derived from prior to the execution of the Deed and was based on communications between the Trustee and Settlor. It was clear that the Settlor did not intend the Trust property to go to charity (the ultimate beneficiary) when there were alternative persons identified by him to be added as beneficiaries. Therefore, in an effort to give effect to the true intentions of the Settlor, the application was granted to rectify the Trust Deed in the terms prayed.

In the Matter of A Trust (Change of Governing Law) [2017] SC (Bda) 38 Civ (19 May 2017)
For details on this case please see Fozeia Rana-Fahy’s post on this topic.

In the Matter of a Trust (Survival of Overriding Power of Appointment Despite Vesting of Beneficial Interests) [2017] SC (Bda) 41 Civ (26 May 2017)
The Trustee sought an order disapplying the perpetuity rule pursuant to section 4 of the Perpetuities and Accumulation Act 2009 and extending the duration of the Trust by 1,000 years. The key issue arising was where a beneficiary’s interest had vested, did the power of appointment in respect of that interest cease to exist? If the power of appointment did not survive then there would have been no point in making the order sought. Having considered the terms of the Trust deed, leading Counsel’s opinion and relevant authorities, the Court was satisfied that in this case the overriding power of appointment did survive any vesting of capital and income.

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