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.
It may seem obvious to practitioners that where there is no mortgage on a property, the legal owner is entitled to retain the title deeds to the property. However, it was recently argued in a dispute over whether a deposit could be forfeited by the vendor in a failed property transaction that the purchaser’s attorneys should be permitted to hold onto the title deeds until the vendor returned the full deposit.
One of the latest notable changes to the Bermuda legislation is the introduction of the Contracts (Rights of Third Parties) Act 2016 (the “Act”). This Act, which is based largely on the UK equivalent, allows parties to a contract in Bermuda to now provide for enforcement of its contractual terms by third parties subject to certain exceptions.
The Chief Justice has recently provided helpful guidance to practitioners seeking confidentiality orders in section 47 applications by handing down an ex tempore ruling in In the Matter of the BCD Trust, supporting the anonymisation and corresponding orders required to ensure that such applications are: “dealt with as private applications, where there is no obvious public interest in knowing about an internal trust administration matter.”