Topic Archives: Wills, Trusts & Estates

“There is only one kind of shock worse than the totally unexpected: the unexpected for which one has refused to prepare.” Mary, Renault, The Charioteer

In May 2013, I wrote about the importance of addressing digital assets in the context of estate planning. With the passage of almost five years, I thought it would be interesting to revisit this subject. What, if any, progress has been made in identifying the nature and scope of digital assets and the rights arising in respect of those assets on the death of the “user”? To make this review a bit easier, I will adopt the definition of a “custodian” used in the Revised Uniform Fiduciary Access to Digital Assets Act (2015) (“DAA”) of the United States, who is defined as “a person that carries, maintains, processes, receives, or stores a digital asset of a user”. This definition is intended to cover all online accounts, services and social networking providers.

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Bermuda has many resourceful and hard-working business proprietors. Each one loves the enterprise he or she has built and for many, the hope is that it will continue many years and possibly many generations into the future. The successful continuation of the business after the death of the proprietor is not, however, a foregone conclusion and if this is a paramount goal of the proprietor, estate planning will be required.

The specific issues that arise in the context of succession to a family business will depend, in the first instance, on the form of that business. Different considerations arise in the context of a sole proprietorship than a limited liability company or partnership, but regardless of the form of business, it is essential to address the future. This article will deal solely with sole proprietorships and I will consider issues related to succession in the context of a limited liability company at a later time.

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In the matter of G Trust [2017] SC (Bda) 98 Civ (15 November 2017)

In the 2015 case of Re BCD Trust (confidentiality Order) [2015] Bda LR 208, the Chief Justice had confirmed that with respect to administration of trust cases, proceedings could be anonymised and dealt with as private applications where there was no obvious public interest in knowing about an internal trust administration matter.

In a recent ruling from November 2017, the Chief Justice has re-confirmed his previous finding with respect to confidentiality orders in the context of trust administration matters.
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Meritus Trust Company Limited v Butterfield Trust (Bermuda) Limited [2017] Bda LR 82

In October 2017, Chief Justice Kawaley ruled that an outgoing trustee is neither entitled to retain any part of the trust assets as security for its equitable indemnity as former trustee nor demand a contractual indemnity.

This case involved an outgoing institutional trustee who upon being removed (as opposed to having retired) as trustee of two trusts, refused to hand over sizeable trust assets or trust documents to the new trustee without first obtaining a contractual indemnity and retention of assets from the two trusts. This was against the backdrop of a potential breach of trust claim of an approximate value of $5 million. The trust deeds did not confer any express retention or contractual indemnity rights on the former trustee.
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For the third year running, MJM Director Fozeia Rana-Fahy has been listed as one of the Top 200 international Powerwomen by Citywealth. The list honours 200 of the most powerful women in government, private wealth, education, private client advisory and philanthropy across the international financial centres (IFCs). The IFC Powerwomen Top 200 list focuses on influencers as well as professionals and celebrates powerful women from diverse backgrounds. It recognises women of achievement who are trailblazers in their field, helping to promote business excellence in their home jurisdiction and consolidating the reputations of the financial services industry globally.
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