Bermuda Law Blog

Jane Collis
In an effort to achieve a fair division of matrimonial assets, the Court is increasingly demonstrating its willingness to scrutinise the beneficial interests of divorcing spouses under family trusts. A high divorce rate seems to have become the norm rather than the exception in the western world. This reality, and the Court’s determination to achieve fairness on the dissolution of marriage, has generated a measure of uncertainty with respect to the treatment of trusts. In a discretionary trust context, a beneficiary has only a right to be considered in the exercise of the trustees’ discretion and this has shielded beneficiaries on divorce, who had no fixed entitlement to any portion of the trust fund. However, the Court, in divorce matters, is concerned about achieving a fair division of marital assets and increasingly has taken the view that a divorcing spouse’s interests under a trust should be subjected to closer scrutiny.

Litigation surrounding Wills is steadily on the increase. In particular, issues of disputed testamentary capacity are becoming more frequent and as such, attorneys must be extremely cautious when taking Will instructions from individuals. What does this mean? Disputes involving lack of testamentary capacity refer to those that have to do with the determination of the mental state of the testator. When an attorney drafts a Will, he or she has the duty to be aware of the client’s competency, to ascertain whether the client is being subjected to undue influence and to make a reasonable assessment of the mental capacity of the client. An attorney should not draft a Will for a client unless the attorney believes that the client has testamentary capacity and a full comprehension of the nature and extent of the estate that he or she is distributing.

Timothy Frith
In my earlier post Bermuda Calling: Telecommunications Reform & Investment Opportunity, I described how telecommunications in Bermuda is undergoing root and branch reform with a view to not only making the industry more competitive but more attractive to investors. The overhaul in telecommunications, following extensive consultation with stakeholders, is embodied in two key pieces of legislation, the Regulatory Authority Act 2011 and the Electronic Communications Act 2011, both of which have become the twin foundation of Bermudian Regulatory Reform in the Telecommunications sector. Now, an update: On the 18th March 2013, Digicel issued an initial complaint to the Regulatory Authority stating that North Rock is providing bundling services and should not be doing so until Integrated Communication Operating Licenses (ICOLs) are issued. The complaint was a result of the examination of North Rock’s advertising material and flyers and their marketing campaign entitled “Blazing Bundles”.

This year’s event marked the seventh legal clinic that MJM Limited has hosted with Age Concern, a registered charity (#561) dedicated to meeting the needs of seniors in the local Bermuda community. Attendees were able to participate in a seminar on essential estate planning tools, which was led by MJM Director Hil de Frias, as well as attend interview sessions with individual attorneys from the firm. Here’s a short 6 minute video about the event: Age Concern Bermuda and MJM present the 2013 Annual Free Legal Clinic (video). Two of the more pressing items that were identified during this year’s legal advice sessions were Powers of Attorney and Wills. My colleague Emily Deane and I have written on Wills in recent posts Advantages of using an Attorney to prepare your Will and With a Will There is a Way so this article will focus on the value of Powers of Attorney.