Wills, Trusts & Estates

06 Mar 2018

Jane Collis
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.
20:18 / Company & Commercial Law / Wills, Trusts & Estates
04 Dec 2017

Fozeia Rana-Fahy
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.
19:44 / Bermuda Case Law & Legislation / Wills, Trusts & Estates
04 Dec 2017

Fozeia Rana-Fahy
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.
19:31 / Bermuda Case Law & Legislation / MJM Barristers & Attorneys / Wills, Trusts & Estates
02 Dec 2017

Agathe Holowatinc
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.
22:23 / Litigation & Dispute Resolution / MJM Barristers & Attorneys / Wills, Trusts & Estates
06 Oct 2017

Jane Collis
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.
14:12 / Bermuda Case Law & Legislation / Wills, Trusts & Estates
01 Sep 2017

Louise Charleson
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.
14:24 / Bermuda Case Law & Legislation / Bermuda Government / Litigation & Dispute Resolution / Wills, Trusts & Estates
31 Aug 2017

Fozeia Rana-Fahy
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.
20:44 / Bermuda Case Law & Legislation / Legislation / Litigation & Dispute Resolution / Wills, Trusts & Estates
19 May 2017

Fozeia Rana-Fahy
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.
19:49 / Bermuda Case Law & Legislation / Wills, Trusts & Estates