Guernsey Trust Law

Tony Pursall is a Partner at Mourant Ozannes, London. Matthew Guthrie is a Partner at Mourant Ozannes, Guernsey.

1. Foundation and Principles
I. Introduction
II. Saisie
III. Statutory Family Trusts
IV. Protective Trusts of Movables
V. Religious Trusts in Connection with the Holding of Churches
VI. Other Charities
VII. Statutory Schemes for the Holding of Churches and Schools
VIII. Use of Trusts in Wills and Other Documents
IX. Growing Use and Statutory Recognition of Trusts in the Twentieth Century
X. Recognition of Trusts by the Guernsey Court
XI. Proposals for the Trusts Law 1989
XII. Overview of the Trusts Law 2007
XIII. Application of Trusts Laws and Amendments
XIV. The Role of Authorities and Precedent in Guernsey
2. Express Trusts
I. Article 29 of the Succession Law 1840
II. Trusts under the Succession Law 1890
III. Trusts of Land in Saisie
IV. Express Private Trusts of Land
V. Charitable Trusts
VI. Purpose Trusts
VII. Employee Benefit Trusts
VIII. Unit Trusts
3. Trusts Arising by Operation of Law
I. Introduction
II. Constructive Trusts of Personalty
III. Liability as a Constructive Trustee
IV. Constructive Trusts of Land
V. Conclusions
4. Taxation
I. The Code of Practice
II. Guernsey Tax Liabilities
III. Liability to Non-Guernsey Taxes
IV. Guernsey Charities
V. Employee Benefit Trusts
VI. Unit Trusts
5. Creation, Validity and Termination
I. Existence of a Trust
II. Principles of Construction
III. Settlor
IV. Formalities
V. Duration and Perpetuities
VI. Validity and Enforceability
VII. Reservation of Powers by the Settlor
VIII. Termination of Trusts
6. Conflict of Laws
I. Introduction
II. Proper Law
III. Jurisdiction of the Guernsey Court
IV. Firewall Provisions
7. Trustees
I. Number of Trustees
II. Appointment of New or Additional Trustees
III. Power to Remove Trustees
IV. Vesting of Property in the New Trustees
V. Disclaimer of Trusteeship
VI. Resignation
VII. Duties of Outgoing Trustee
VIII. Appointment and Removal of Trustees by the Court
IX. Trustee Remuneration
X. Trustees’ Expenses
XI. Trustees de Son Tort
XII. Dealings with Third Parties
XIII. Insolvent Trusts
8. Powers, Duties and Liabilities of Trustees
I. Duties of Trustees
II. Powers of Trustees
III. Other Duties Applicable to the Exercise of Trustee Discretions
IV. Letters of Wishes
V. Liability for Breach of Trust
VI. Duties of Prospective Trustees
VII. Liability of Directors of Corporate Trustees
9. Beneficiaries
I. Definition of ‘Beneficiary’
II. Addition and Removal of Beneficiaries
III. Requirements for Beneficiaries
IV. Disclaimer
V. Nature of Beneficiary’s Interest
VI. Assignment of a Beneficial Interest
VII. Protective Trusts and Spendthrift Provisions
VIII. Class Interests
IX. Consent to Breach of Trust
X. Power to make Beneficiaries Indemnify
XI. Disclosure of Information to Beneficiaries
XII. Data Protection Law
XIII. Disclosure to Third Parties
XIV. Disclosure by Beneficiaries
10. Protectors
I. Introduction
II. Powers of Protectors
III. Regulation of Protectors
IV. Protector not a Trustee
V. Nature of Protector’s Powers
VI. Appointment and Removal of Protectors
VII. Protector’s Indemnity
VIII. Remuneration
IX. Retirement
X. Court’s Jurisdiction in Relation to Protectors
XI. Exoneration
XII. Disclosure of Information
XIII. Delivery Up of Documents
XIV. Exercise of Powers
XV. Liability
XVI. Conflicts of Interest
XVII. Prescription Period
XVIII. Standing to Apply to Court
XIX. Drafting Issues
11. Trust Investments
I. Trustee’s Investment Duties
II. Regulatory Issues
III. Delegation of Investment Management
IV. Power to Direct Investments
12. Introduction to Trust Litigation
I. The Jurisdiction of the Royal Court
II. Applications for Directions
III. General Powers of the Court
IV. Application to Distribute Trust Assets in the Context of Anti-money Laundering Issues
V. Approval of Trustees’ Actions
VI. Beddoe Applications
VII. Payment of Costs in Relation to Court Proceedings
VIII. Prescription and Limitation Periods
IX. Breach of Trust Judgment against Trustee to be Binding on All Beneficiaries
X. Alternative Dispute Resolution
13. Attacks on Trusts
I. Introduction
II. The Sham Doctrine
III. Donner et Retenir ne Vaut
IV. Variation of Trusts in Foreign Matrimonial Proceedings
14. Variation of Trusts
I. Introduction
II. Variation under the Express Terms of the Trust
III. Variation by the Beneficiaries
IV. Variation by the Court
15. Remedial Applications to Court
I. Introduction
II. General Principles Applicable to Rectification and Rescission
III. Rectification on the Ground of Mistake
IV. Rescission on the Ground of Mistake
V. The Rule in Hastings-Bass
16. Regulation of Fiduciaries
I. Background
II. The Guernsey Financial Services Commission
III. The Regulatory Regime for Professional Fiduciaries
IV. Principal Offence
V. Private Trust Companies
VI. Types of Licences
VII. Other Powers under the Fiduciaries Law 2000
VIII. Licensees’ Obligations
17. The Public Trustee
I. The Office of the Public Trustee
II. Trusts in Respect of which the Public Trustee May Act
III. The Functions of the Public Trustee
IV. Regulation
V. Appointment of the Public Trustee as Trustee
VI. Supplementary Powers and Provisions
VII. Appeals against Decisions of the Public Trustee
VIII. Confidentiality
IX. Limitation of Liability
X. Public Trustee to Act Alone in Most Cases
XI. Delegation
XII. Remuneration