Investec Trustees (Jersey) Ltd; Investec Co- Trustees (Jersey) Ltd v BC; LC; CH; AC (through her guardian ad litem Advocate Michael Cushing)

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: Bailiff
• Judgment Date: 16 September 2013
• Neutral Citation: [2013] JRC 181
• Date: 16 September 2013

[2013] JRC 181

ROYAL COURT

(Samedi)

Before:

Sir Michael Birt, Kt., Bailiff, sitting alone.

Between

IN THE MATTER OF THE COMO SETTLEMENT

Investec Trustees (Jersey) Limited

Investec Co-Trustees (Jersey) Limited

Representors

and

BC

First Respondent

LC

Second Respondent

CH

Third Respondent

AC (through her guardian ad litem Advocate Michael Cushing)

Fourth Respondent

Advocate E. C. P. Mackereth for the Representors.

The First Respondent appeared in person.

Advocate D. P. Le Maistre for the Third Respondent.

Authorities

Trusts (Jersey) Law 1984.

Trust — directions sought regarding the continuing proceedings.

Bailiff

THE

1 At the conclusion of the hearing on 14th August, I indicated that I would give a brief judgment explaining the reasons for my decision.

Background

2 The Como Settlement (“the Trust”) was established by deed dated 24th March, 1976, made between the settlor and Goddard Trustees (Jersey) Limited and Christopher Edward Lloyd as trustees. Goddard Trustees (Jersey) Limited has undergone various changes of name but since 1st March, 2004, has been called Investec Trustees (Jersey) Limited and is the first representor. The second representor Investec Co-Trustees (Jersey) Limited was appointed as trustee in place of Mr Lloyd in February 2002. The representors (“the trustees”) are therefore the current trustees of the Trust.

3 The Trust is governed by Jersey law and the beneficiaries of the Trust were the settlor, his second wife and the children of the settlor. By clause 4 of the trust deed, the trust fund, following the death of the settlor and the second wife, was to be held for the children of the settlor in equal shares, with the respective shares vesting absolutely on a child attaining the age of 18.

4 The settlor died in October 2001 and the second wife died in on 26th February, 2002. The settlor left three children, namely the first respondent (“the daughter”), her brother the second respondent (“the son”) and a half-sister the fourth respondent (“the half-sister”), who was born on 19th June, 1998, and is the child of the settlor and his third wife, the third respondent. It follows that, from 26th February, 2002, the daughter and the son each had a vested interest in one third of the trust fund (as they were both over 18 at the time). They retained a contingent interest in the remaining one third of the trust fund by reason of the possibility that the half-sister could die before attaining the age of 18.

5 It is understood by the trustees that, following the death of the settlor, a dispute arose between the daughter and the son on the one part and the third wife on the other part concerning the will and estate of the settlor. It appears that a compromise (“the Compromise”) was reached in July 2004 whereby the daughter and the son instructed the trustees to hold their respective vested interests in the Trust for the third wife absolutely from the date of the letter of instruction 23rd July, 2004, and, in the event of the half-sister dying before reaching the age of 18, also to hold that further interest for the third wife absolutely.

6 It appears that the daughter subsequently brought proceedings in Italy in August 2009. According to the affidavit filed on behalf of the trustees by Mr Charles Pitter in the present proceedings, the daughter alleges in the Italian proceedings that the third wife concealed and/or undervalued assets of both the estate of the settlor and of the Trust and that she misappropriated various of such assets. As against the trustees, she alleges that they failed to provide her with accurate information about the Trust and her entitlement as a beneficiary and colluded with the third wife in concealing the true picture from her, with the result that she and the son agreed to transfer their interests under the Trust to the third wife without being aware of their real value.

7 Just prior to the institution of the Italian litigation, the trustees had on 2nd July, 2009, received a letter from Hunters, Solicitors, an English law firm, stating that the daughter and the son were concerned that assets in the Trust may not have been disclosed to them and that accordingly the assignment of their interest in the Trust may not have been valid. The letter requested disclosure of certain documents and information relating to the Trust and to the trustees' relationship with the settlor.

8 On 4th August, 2009, the trustees received a fax from the third wife stating that she considered that the daughter and the son had relinquished any right to the Trust and that accordingly she did not believe they had any right to any information about the Trust. She asked the trustees not to release any information of any kind, especially inventories of any of the companies that were involved with the Trust.

9 Various correspondence then took place in which the trustees expressed the view that the daughter and the son were entitled to information about the Trust for the period in which they had been beneficiaries, which on any view was the situation up to 23rd July, 2004, (and arguably thereafter in respect of the one third contingent interest), but the third wife, through her lawyers, remained opposed to the disclosure of any information.

10 In the circumstances, faced with this conflict, the trustees brought the present proceedings by representation dated 18th November, 2010. Although, in the prayer of...