A v B & ors FSD 56 of 2019 (RMJ)

WTLR Issue: Summer 2020

A (AS TRUSTEE OF THE TRUST)

V

1. B (IN HIS CAPACITY AS PROTECTOR OF THE TRUST)

2. C (IN HIS CAPACITY AS PROTECTOR OF THE TRUST)

3. D

4. E

5. F

6. G

7. H

8. I

9. J

10. K

11. L

12. M

13. N

14. O

15. P

(BENEFICIARIES OF THE TRUST)

Analysis

The plaintiff trustees of a discretionary trust governed by Cayman law sought a declaration concerning the power of variation conferred by the trust instrument, and which was in the following terms:

‘The Trustees may, with the consent of the Settlor during his lifetime, at any time and from time to time by instrument in writing vary, add to, revise or modify, the terms and conditions of this Settlement except that no such amendment may be made which either changes any Beneficiary hereunder or alters that [sic] terms of clause (I) of subsection 3.4 of this Settlement.’

The subsection referred to provided that on the death of the settlor certain sums must be paid to a former wife of the settlor, and subsequent distributions made. That subsection was itself the result of a variation made with the settlor’s consent.

The issue for the court was whether the power of variation continued to be exercisable after the settlor’s death.

Held:

The power was exercisable after the settlor’s death. In construing the instrument the court looked to give effect to the intention as expressed by the words used, giving the words their ordinary meaning but having regard to the factual matrix – IRC v Raphael and Investors Compensation Scheme v West Bromwich Buildings Society (No 1) followed. As a matter of syntax, the placement of the comma after ‘lifetime’ indicated the power was operative (a) while the settlor was alive, and with his consent; and (b) after his death, at any time and from time to time by instrument in writing. Moreover, the reference to Art 3.4(1) impliedly acknowledged that the power remained operative after the settlor’s death.

Declaration accordingly.

JUDGMENT MCMILLAN J: Reasons for judgment [1] The matter before the Court arises from an Originating Summons dated 5 April 2019 issued by the Trustee of the Trust in question (the Plaintiff). [2] A Declaration was sought concerning the extent of the Power of Variation conferred on the Plaintiff by Art 5.25 of the Trust. …
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Counsel Details

Ms Shan Warnock-Smith QC (5 Stone Buildings, Lincoln’s Inn, London WC2A 3XT tel 020 7242 6201, e-mail clerks@5sblaw.com), instructed by Mr Colin Shaw and Mr Thomas Shaw of Colin Shaw & Co (1st Floor, Grand Pavilion Commercial Centre, PO Box 10173, Grand Cayman KY1 1002, tel +1 345 945 3301) for the plaintiff.

Mr Andrew De La Rosa (ICT Chambers, PO Box 10100, KY1-1001, Grand Cayman, tel +1 345 926 5211, e-mail clerks@ictchambers.com), instructed by Ms Morven McMillan and Mr Adam Huckle of Maples and Calder (Ugland House, South Church Street, PO Box 309, Grand Cayman KY1-1104, tel +1 345 949 8066, e-mail rachel.yates@maples.com) for the first and second defendants.

Mr Francis Tregear QC (XXIV Barristers Chambers, 24 Old Buildings, Lincoln’s Inn, London WC2A 3UP, tel 020 7691 2424, e-mail clerks@xxiv.co.uk), instructed by Mr Charles Moore of Hameys (Harney Westwood & Riegels, 3rd Floor, Harbour Place, 103 South Church Street, Grand Cayman, PO Box 10240, KY1-1002, tel +1 345 949 8599, e-mail cayman@harneys.com) for the third defendant.

Ms Catherine Newman QC (7 Stone Buildings, Lincoln’s Inn, London WC2A 3SZ tel 020 7406 1200, e-mail clerks@maitlandchambers.com), instructed by Mr Carlos de Serpa Pimentel, Ms Anya Martin and Mr Esmond Brown of Appleby (71 Fort Street, PO Box 190, Grand Cayman, KY1-1104, tel +1 345 949 4900, e-mail cayman@applebyglobal.com) for the fourth to fifteenth defendants.

Cases Referenced

Legislation Referenced

  • Trusts Law (2018 Revision), s48