Recently tabled in the House of Assembly, the Proceeds of Crime Amendment (No.3) Act 2017 (“PCA3”) will have the effect of extending regulatory reach to lay trustees.
Some of you already act as a trustee for a friend or family member. Others will be asked to do so in future. The playing field is changing for lay trustees and it is important to fully understand the responsibilities of the position.
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Church Bay Trust Co. Ltd. v Her Majesty’s Attorney General for Bermuda  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.
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The Chief Justice has recently considered the impact of the Children Act 1998 (“the Act”) as amended by the Children Amendment Act 2002 (“the 2002 Amendments”) upon the ability of trustees to change the governing law of a foreign law trust to Bermuda.
The 2002 Amendments, which came into force in January 2004, created a new rule for construing all instruments, including international trusts. On one reading of the Act, a person can no longer validly give a gift or make dispositions of property to their “legitimate children” only (unless each legitimate child is identified by name), since such a gift/disposition would be construed as a gift/disposition to their legitimate and illegitimate children.
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The Transcontinental Trusts International Forum 2017 took place earlier this month on 4-5th May 2017 at the Fairmont Southampton. This conference began in Bermuda in 2015 and has grown hugely in popularity as one of the key events on the private client calendar. This year it was attended by leading international experts, lawyers and barristers from the international and local private client market as well as renowned international judges. The whole event received an extremely favorable response from speakers and delegates alike. Topics covered included the impact of Brexit and the US election on the industry, practical consequences flowing from CRS & FATCA, an international litigation update, family governance and tax changes in the US and UK. Furthermore, data protection was highlighted in several of the sessions as an area to look out for.
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In the Matter of the C Trust  SC [Bda] 53 Civ was the first Bermuda case to extend the perpetuity period under the new Section 4 of the Bermuda Perpetuities and Accumulations Act 2009 (“the 2009 Act”). The amendment to Section 4 took effect in December 2015. Although prior to the amendment, the 2009 Act had already abolished the rule against perpetuities with respect to instruments taking effect on or after 1 August 2009, the rule continued to apply to trusts established under Bermuda law prior to 1 August 2009 as well as to trusts originally established in other jurisdictions (with an applicable perpetuity period or similar limitation) but now governed by Bermuda law.
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