Analysis
Held:
1) On the wording of the trust deed, the protectors of the trust had to act jointly. The unilateral designation of the first successor protector was therefore invalid, as was his purported designation of P as his successor protector.
2) Since the powers of the protector under the trust deed – the power to remove and appoint trustees, power to move the situs of the trust and authority to require and approve accounts – were fiduciary, and since the personal characteristics of the individual originally appointed by the trust deed were not essential to the exercise of the power, the Court’s inherent jurisdiction extended to the appointment of protectors to exercise those powers, citing the Isle of Man case, Rawcliffe v Steele. The Court could thus appoint protectors in the same way that it could appoint trustees. The appointment of the new protectors in question, being experienced legal professionals, was in the best interests of the due administration of the trust.
3) Section 47 of the Bermudan Trustee Act 1975 (power of court to authorise transactions related to trust property) allowed the court to confer power on the trustee for the purpose of effecting any transaction affecting or concerning trust property which in the opinion of the court would be expedient, but which the trustee cannot effect by reason of the absence of such power. ‘Transaction’ had a broad interpretation in this context, applying English authorities on the extent of s64 of the English Settled Land Act 1925: Hambro v Duke of Marlborough. The proposed amendment of the trust deed fell within the meaning of ‘transaction’ and was plainly expedient, and would be permitted.
JUDGMENT [1] This is an application by Butterfield Trust (Bermuda) Ltd, as trustee of the H Trust (‘the Trustee’ and ‘the Trust’ respectively) for the following orders: First, a declaration that Mr P is not a Protector of the Trust on the ground that his purported nomination as successor Protector by one of the original …Continue reading "Re H Trust; Butterfield Trust (Bermuda) Ltd v P & ors [2020] WTLR 167"