Bermuda Case Law & Legislation

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

Jennifer Haworth
In the first decision of its kind, the Bermuda Supreme Court has utilized its powers under Section 39 of the Arbitration Act 1986 (the “Act”) to terminate an arbitration - and in this case a very important one - the arbitration between The Allied Trust and Allied Development Partners Limited (together “Allied”) and The Government of Bermuda. This decision follows Parliament’s voiding of Allied’s lease over the Hamilton Waterfront (the “Waterfront Arbitration”).
21:34 / Bermuda Case Law & Legislation / Litigation & Dispute Resolution
27 Nov 2017

Jennifer Haworth
In December 2016, the legislature in Bermuda passed the Bribery Act 2016 (the “Act”) which came into force on 1 September 2017. The Act is based on the UK Bribery Act 2010. In the past, there were several separate laws dealing with bribery and corruption offences in Bermuda, such as the Criminal Code 1907 (Section 111 Official Corruption and Section 112 Extortion By Public Officers), the Parliament Act 1957 and the Parliamentary Election Act 1978. But as of 1 September, we have one comprehensive statute that sets out bribery offences in Bermuda, including the offence of failure of commercial organisations to prevent bribery, a strict liability offence for which the only defence is for a commercial organisation to demonstrate that it had ‘adequate procedures’ to prevent bribery.
21:14 / Bermuda Case Law & Legislation / Bermuda Government
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
31 Aug 2017

Jordan Knight
Recently in the news there have been increasing reports of rescue efforts and road accidents where members of the public have been praised for assisting the victims until emergency services personnel arrived. For some people, leaping to action in those circumstances is an instinctual response to seeing a fellow man or woman in need. But what happens if in doing so that person makes the matter worse?
19:44 / Bermuda Case Law & Legislation / Legislation / Litigation & Dispute Resolution / Miscellaneous