Before : |
R. J. MacRae, Deputy Bailiff, sitting alone |
Between |
BOS Trustee Limited |
Representor |
And |
(1) B |
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(2) C |
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(3) D |
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(4) E |
Respondents |
Advocate O. J. Passmore the Representor
Advocate S. J. Alexander for the First Respondent
Advocate M. C. Seddon for the Second, Third and Fourth Respondents
judgment
in private
the deputy bailiff:
1. On 6 June 2023, I gave directions in relation to this matter. My reasons were reserved. This judgment contains those reasons.
2. In this judgment, the Representor will be called ("the Trustee"), the First Respondent ("B"), and the Second Respondent ("C"). The position of the Second Respondent was adopted by the Third and Fourth Respondents.
3. It is useful to set out the background to this dispute before sketching out briefly the position of the various parties, the issues before me and a succinct summary of my reasons for the decisions that I made.
4. F was born in 1927 and died aged 93 in 2021. I will refer to him as the Settlor in this judgment.
5. His first wife was G. She died in 2016 aged 88.
6. G and the Settlor married in 1954 and had four children. Two of those children died in 2009, and one, H, had two children, D and E, the Third and Fourth Respondents, who are now aged in their mid-thirties.
7. Their two surviving daughters are J and C. C is 63 years old. J is 67 years old.
8. It is said that G was from an extremely wealthy Country A family (all the beneficiaries live in the Country A) and that the wealth of the family was inherited or received by G from her father, L, including upon her inheriting from him in 1972 when he died.
9. The Trust was settled by the Settlor on 8 November 2010 and was initially called the R Trust, the name being changed to the Q Trust on 26 October 2017. The Representor has been Trustee since 2016 and a connected entity was trustee from 2010 until 2016.
10. The Trust is governed by Jersey law. The assets are substantial, worth a total of $156 million. It is said that some, or perhaps all, of the assets placed into Trust by the Settlor were originally the property of G's family and to this extent they are or maybe 'paraphernal' assets. This is a matter to which I will return.
11. Shortly after G died in 2016, the Settlor, in September of that year, proposed to and married B. At the time, B was 68 and the Settlor was 89 years old and B says that she had been a friend of the Settlor and his first wife for some forty years at that time.
12. As to the terms of the Trust, there is a protector; the Trustee may nominate persons or classes of beneficiaries; the Settlor may remove persons or classes of beneficiaries; the Settlor may appoint a protector; if there is no protector the Trustee may do so.
13. So far as is relevant, the history of those entitled to benefit under the Trust is as follows. J was removed as a beneficiary on 15 February 2012. C and her niece (and the Settlor's granddaughter D) were appointed beneficiaries on 30 September 2013.
14. On 22 March 2017, the Settlor appointed C and D as joint protectors to the Trust, but on 5 November 2020, he appointed D as sole protector, purportedly removing C as protector at the same time. The Settlor had no express power to remove a protector and accordingly it appears the prior removal of the first protector, and subsequent removal of C, may be invalid.
15. Six months after her marriage to the Settlor, B was appointed a beneficiary on 18 April 2017.
16. In January 2019, the Settlor executed a Will.
17. On 18 November 2020, the Settlor executed an updated Letter of Wishes which provided that 90% of the Trust fund should go to B, with 5% to E and D respectively.
18. C was removed as a beneficiary on 18 November 2020 by what has been called "the 2020 Deed of Removal".
19. In January 2021, the Settlor executed a further second Will. The Settlor died on 3 April 2021 aged 93, having contracted Covid.
20. A few months later on 21 May 2021, C filed a parricide complaint in Country A to the effect that B and her personal assistant, M, were responsible for the unlawful killing of the Settlor by recklessly exposing the Settlor to Covid. Those proceedings are still in train, notwithstanding the fact that B has tried to have them halted.
21. C challenges the validity of three Letters of Wishes executed by the Settlor in April 2017, September 2018 and 2020, the 2020 appointment of D (which purportedly removed C as protector), and the 2020 Deed of Removal of C as a beneficiary. The grounds for attacking those documents is that it is said by C that the Settlor lacked the appropriate mental capacity to execute these documents by virtue, inter alia, of a stroke in November 2016; a second stroke in January 2018; undue influence exercised over the Settlor by B, and various other matters which are particularised at some length in the points of claim which C was ordered to provide and which were served on 20 January 2023. B denies the allegations of incapacity and undue influence in her Answer to the points of claim dated 2 March 2023. Both B (who is now 75 years old) and C rely on medical and other evidence in support of the claims they make as to the Settlor's capacity, although some of this is yet to be disclosed.
22. The Trustee issued its Representation in order to seek the Court's directions and wishes to adopt a neutral stance on the questions of incapacity and undue influence; which need to be resolved, and seeks directions as to how it should administer the Trust in the meantime.
23. The Trustee has instructed its own expert, N, a consultant in old-age psychiatry who, in short, has been unable to dismiss the allegations of incapacity which have been made. He requires further evidence in order to reach a more definite conclusion on this issue. C and the Third and Fourth Respondents support the Trustee in its proposed investigations, and B says they should be dismissed out of hand.
24. Directions were made by the Court on 6 December 2022 requiring the Second, Third and Fourth Defendants to file and serve points of claim (which they did), and the First Respondent and Representor to file Answers (which they did) and thereafter the parties carry out disclosure in April 2023, exchange evidence as to fact by affidavit in May 2023, and then expert evidence in late June 2023. Unfortunately, owing to disputes, particularly in relation to a request for further particulars arising out of C's points of claim, the parties have failed to comply with that timetable and also failed to fix a new timetable or apply to do so prior to the Court's orders being breached. As I said at the recent hearing, this should not occur again and the new timetable which I laid down needs to be complied with, and any applications to fix a new timetable should be made no less than seven days prior to any particular time limits expiring.
25. There were three key matters to be resolved at the directions hearing:
(i) First, the request for further amended particulars of C's claim made by B.
(ii) Secondly the new paraphernal claims made in C's points of claim in 2023 - which had not been foreshadowed in correspondence or at all, so far as the Trustee is concerned; and
(iii) Thirdly, depending on my decision on the first two issues, I needed to set a new timetable in order to bring matters to a reasonably swift determination.
26. Accordingly, I first considered the request for further and better particulars.
27. This was on any view a comprehensive request of what was, in my judgment, a reasonably detailed pleading, i.e. the points of claim delivered by C on 20 January 2023. There are 39 requests running to 23 pages. It was said on behalf of C that there were a total of 97 requests. My attention was drawn to the principles upon which the Court consider such applications. Royal Court Rule 6/8(1) provides:
"(1) Subject to the provisions of this Rule, every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for that party's claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits."
28. C says that her pleading must only contain a summary of the material facts and not the evidence by which those facts can be proved - that is provided in the witness statements. Pleadings should be proportionate in length.
29. There is also a Practice Direction on requests for further information (which a request for further particulars is). Paragraph 4 of the Practice Direction says that before applying for an order requiring the other party to provide further information under Royal Court Rule 6/15, the party requesting material should make a written request for the information sought giving a reasonable period of time to respond. Paragraph 5 says "The Request should be concise and should only relate to matters that are reasonably necessary and proportionate for a requesting party to prepare its own case, or to understand the case it has to meet" [My emphasis]
30. Further, Rule 6/15 in effect says the purpose of obtaining information is to "clarify any matter which is in dispute in the proceedings" or "give additional information in relation to any such matter".
31. The response to the request for the further and better particulars was provided on 24 May 2023 and is fifty pages in length. It is said by C that that response given was proportionate and that B had been given the information that she was entitled to. It was argued on behalf of B that the requests were designed to deal with deficiencies in the points of claim and were reasonable as they were asking for information in relation to matters of which B had no knowledge; more information was needed in relation to these matters in order for B to adequately address them. It is not appropriate for me to consider each request in turn as that would unnecessarily lengthen this judgment. Suffice to say I have considered each request and each reply in the context of the points of claim filed by C, and the Answer filed by B. By and large, I took the view that the replies given to the requests for further and better particulars in the document dated 24 May 2023 were sufficient and satisfactory in the circumstances. They were sufficiently comprehensive for B to know the case that she had to meet. It is said that all the responses to the requests made were inadequate. That simply cannot be the case. For example, the last request under paragraph 39 of the points of claim which pleaded that the Settlor was frequently exposed against his will by B throughout March 2021 to crowded events and public places during the height of the Covid 19 pandemic despite strict guidelines in the Country A including a stay at home order, and that such exposure was against medical advice. Three requests, broken down to various sub-requests were made of this allegation. The response was detailed and referred to seven occasions between 19 February 2021 and 28 February 2021, where B took F, then aged 93, to public places, usually hospitality events, dining or shopping, which are particularised sufficiently in my view as is the medical advice concerned.
32. Nonetheless, there were four requests where, in my view, the responses were insufficient and I ordered that they be responded to by 5pm on the Friday week following the hearing. Those were the following:
(i) The requests under paragraph 17 in respect of the first stroke allegedly suffered by the Settlor on 8 November 2016. This is a key event and it is said in the Answer filed by B at paragraph 17 that it is not admitted that the Settlor suffered such an episode that day. It is proper in the circumstances for the request in that specific regard to be responded to. Currently there has not been a substantive reply.
(ii) The same applies to the request made under request number 18 at paragraph 8 of the request for further and better particulars in relation to the alleged second stroke on 25 January 2018. Those questions must also be answered.
(iii) Thirdly, in relation to request number 19 under paragraph 23 in respect of C's assertion that she has obtained opinions from leading medical practitioners based upon scans taken of the Settlor's brain in April 2016, April 2017, January 2018 and September 2019. The request for disclosure of those opinions should be responded to and copies provided following the long-standing principle that specific documents referred to in a pleading should be disclosed on request. In my view, the reference to these opinions was sufficiently particular to warrant disclosure at this stage.
(iv) Finally, I ordered that the first request, i.e. (i)(a) to (d) inclusive under paragraph 38 should be responded to, as the reply to this request is inadequate as is demonstrated when compared to the other responses including, for example, the response to the request made under paragraph 39 referred to above. C says that following F's return from the USA when in ill health in June 2020, he was coerced into attending numerous social and business events with a large number of attendees against his will and, in the circumstances, it is not appropriate to refuse to particularise any of those alleged events.
33. Accordingly, there were four answers to the requests made by B which I regarded as inadequate, and which needed to be answered properly in order for B to know the case she has to make and to narrow the issues between the parties prior to trial.
34. This claim is contained at paragraphs 44 to 49 inclusive of C's points of claim under the title 'Paraphernal assets' and says:
"44. Further or alternatively to the causes of action pleaded above, C seeks the Royal Court's direction that the Representor provide an account of the Trust assets to establish whether F did not have legal or beneficial title in respect of property which he purported to settle onto the terms of the Trust.
45. As a matter of Country A's law, the assets, and any proceeds thereof, which G inherited from L's Estate are deemed to be paraphernal in nature. Country A's legal principles provide that G retained absolute, sole control over those paraphernal assets and proceeds, which were not capable of being jointly held by F as part of the pool of conjugal property.
46. On 10 December 2021, the Country A Regional Trial Court, made orders declaring that:
(a) With the exception of one property, all "Real Property" in the Estate of G was paraphernal in nature;
(b) All stocks and shares in the O Companies held in the name of G and/or F were the paraphernal property of G;
(c) A single property at [redacted], together with an amount of cash and jewellery, were the only conjugal property of F and G; and
(d) The decision would allow the collation of additional property and assets as part of the list of paraphernal assets.
47. In this regard, certain paraphernal assets received by G from L's estate were placed in Country B corporations following her inheritance. Those corporations were dissolved and their assets were settled as part of the Trust property in and/or around 2010.
48. As a matter of Country A law, any dispositions by F purporting to settle G's paraphernal assets, or proceeds thereof, onto the terms of the Trust without G's consent are void. Further, as matter of Country A law, there is a right to re- conveyance of any such paraphernal assets and the proceeds thereof to the Estate of G, in respect of which C is co-administratrix.
49. In the premises, any property which has been settled into the Trust which is the paraphernal property of G has been improperly settled by F. C therefore seeks:
(a) Orders for an account of assets settled into the Trust for the purpose of tracing whether any property in the Trust is the paraphernal property of G; and
(b) Orders that the property to which F did not have legal or beneficial title does not comprise part of the assets of the Trust; and/or
(c) Orders declaring that the Representor holds such paraphernal property for the benefit of the Estate of G absolutely, or that a constructive trust has arisen in respect of such paraphernal property in the hands of the Representor with a duty to re-convey to the Estate of G; and/or
(d) Any other necessary relief or consequential orders in respect of (a) to (c) in this paragraph as the Court considers appropriate."
35. Reliance was made by C on the remark I made at a directions hearing last year when I am noted to have said that 'issues of capacity, undue influence, construction and all other relevant issues' could be determined in these proceedings. Whatever the context of this remark, it seems to me that 'relevant issues' needed to be understood under the umbrella of the matters brought to Court by the Trustee in its Representation, i.e. relevant to the claims of incapacity and undue influence etc. The paraphernal assets claim was wholly without the knowledge of the Trustee when it issued proceedings or when I last gave directions in this case.
36. Nonetheless, it is argued on behalf of C that it is a matter that should be resolved in these proceedings, that it would be convenient to do so, that it is an issue between C and B, and between C and the Trustee, and that it is necessary for the issue to be resolved in order for the Trustee to know upon what trusts it holds the Trust assets in view of the paraphernal claims as set out in the extract from the points of claim above.
37. There is, of course, some merit in these arguments. However, the suggestion that the paraphernal assets claim should be resolved in these proceedings was disputed by B and, although the Trustee strove to adopt a neutral stance, effectively doubted by the Trustee.
38. As to the decision of the Country A Regional Trial Court, dated 10 December 2021, even though that decision was made eighteen months ago and apparently it was either handed down in English or an English translation is available, it still has not been provided to the Trustee to consider. The Trustee was, as I said above, first notified of C's claim in respect of paraphernal assets in her points of claim. The Trustee has not yet taken advice in the Country A as to the effect of the Court order. I am not directing that it should or should not do so in this judgment - that is a matter for the Trustee. However, it is a claim which on the face of it does require some investigation on the part of the Trustee.
39. Further, although C said that she was pursuing this claim, including her claim for an account of the assets settled in the Trust on the basis that she was, and may still be, a beneficiary of the Trust, the Trustee quite rightly, in my view, said that in substance this was a hostile claim. Although this was rejected on behalf of C, it was difficult to see the paraphernal claim in any other way as the relief that is sought at paragraph 49(c) of the points of claim is that the Trustee holds such property for the benefit of the estate of G absolutely and not on Trust. That is to say that the Trustee does not hold the Trust estate (or some of it) on Trust for the beneficiaries but, in fact, on behalf of the estate of G - which was confirmed to include C, although counsel for C did not know precisely who else was a beneficiary of the estate of C's mother. C is the co-executor of the estate of her mother with her sister. It was suggested by counsel for the Trustee and counsel for B that such proceedings could be pursued by way of a separate Representation. To my mind, such a hostile claim should, on normal principles, be begun by way of Order of Justice although, as I have said, when I gave my decision there is no reason, if it was pursued quickly, that such an Order of Justice might not be heard at the same time as these proceedings. However, such proceedings would not be permitted to derail or delay these proceedings. Counsel for C conceded that there had been no letter before action sent prior to the pleading of the claim in relation to paraphernal assets. It was also accepted that paragraphs 44 to 49 were not particularised in detail. By way of example only, paragraph 48 says that as a matter of Country A law, any dispositions by the Settlor purporting to settle G's paraphernal assets onto the terms of the Trust without G's consent were void. However, there was no pleading to the effect that G had not given such consent. There was no evidence before the Court to the effect that the Settlor and G were anything other than happily married when the assets were placed into Trust. Both the Settlor and G are now dead and there was no indication that evidence has been identified to the effect that the assets in question (which are themselves yet to be identified) were settled on to Trust absent the consent of G. Counsel for C accepted that they had 'assumed' that G did not consent to the assets being placed into Trust and made an assertion to that effect in the pleadings. In that regard, the request for an 'account' was a preliminary first step.
40. Similar circumstances arose in the M Trust [2003] JRC 002A, where Sir Michael Birt, Bailiff, made the following observations:
"20. Although there is no formal application before us, Mrs Springate sought to rely on the position of S as a beneficiary of both trusts and the mother as a beneficiary of the M Trust as entitling them to see trust accounting documents. She referred to the case of Re Rabaotti (2000) JLR 173 which held that there was a strong presumption that a beneficiary is entitled to see trust accounting documents, although the Court has a discretion to withhold documents where it is satisfied that this is in the best interests of the beneficiaries as a whole.
21. The difficulty at present is that the mother alleges in the Illinois proceedings that the trusts are invalid. If she is right, the beneficiaries under the trusts will be entitled to nothing. On the face of it, we think that any beneficiary would have a difficult task in suggesting on the one hand that she wishes to invalidate a trust but, on the other hand, asks the Court to order disclosure of documents to her in her capacity as a beneficiary so that she might use them in her action to invalidate the trust. It is hard to see that the making of such an order would often be in the interests of the beneficial class as a whole. That was the situation in the case of Re Lemos Trust Settlement (1992-1993) CILR 26 where certain beneficiaries had instituted proceedings in the Greek courts seeking to set aside a Cayman Island settlement. The beneficiaries then sought an order from the Cayman Island court that the trustee should be ordered to disclose trust documents to them. The court refused to grant such an order on the basis that it was not in the interests of the trust as a whole for documents to be provided in order that they might be used in proceedings elsewhere attacking the validity of the trust.
22. Having regard to the overall circumstances of this case, we are in no doubt that, for as long as the mother seeks to challenge the validity of the trusts in the Illinois proceedings, it would not be in the interests of the beneficial class as a whole for trust documents to be disclosed to the mother (whether in her own capacity or as guardian of S) so that she might use them in the Illinois proceedings."
41. Accordingly, in exercise of my management powers, I struck out the relevant paragraphs from the points of claim which asserted the claim to paraphernal assets. These claims may prejudice or delay the trial of the proceedings begun by way of representation and accordingly are liable to be struck out under Court Rule 6/13(c) and should have been commenced by way of Order of Justice and accordingly are an abuse of process of the Court under Rule 6/13(d). I indicated that C is entitled to pursue these claims by way of Order of Justice and in discovery in those proceedings she would, if relevant, receive disclosure of the material that she seeks in respect of information regarding the assets to the Trust to extent that they are or may be paraphernal.
42. Nonetheless, these claims should not be asserted in these proceedings. This is not a former beneficiary asking for an account from the Trustee as to its trusteeship. It is a former (or current if she is correct) beneficiary making a claim against the Trust in her capacity as executor of her late mother's estate. C was convened to the proceedings in her capacity as beneficiary of the Trust, not as a co-executor of her mother's estate.
43. I also accept as raised in argument that there may also be significant issues to consider in any subsequent proceedings of the terms of the firewall provisions of Article 9 under the Trusts (Jersey) Law 1984. I do not want to prejudge such arguments by saying more about that matter.
44. Originally it was anticipated that the trial of this Representation would last four days. But, on behalf of C, I was told that she alone wishes to call ten witnesses, most of which will require a translator. All reside in the Country A and many will wish, although that is a matter for the Court to consider in due course, to give evidence by video link and the Court day may be truncated by virtue of the time difference between Country A and Jersey.
45. Accordingly, having heard submissions from counsel, I directed that the Representation be listed with a time estimate of two weeks and made other ancillary directions as follows:
"1. that paragraphs 44 to 49 inclusive of the Points of Claim of the Second Respondent shall be struck out of these proceedings;
2. that the Second Respondent is at liberty to proceed with the claim made in respect of paraphernal assets by way of a properly pleaded Order of Justice if advised to do so, and if such proceedings were issued and pursed with expedition then, in principle, they might be determined at the same time as the proceedings commenced by way of Representation;
3. that the Second Respondent shall respond to the following requests made by the First Respondent for further and better particulars of her Points of Claim, namely;
i) request 3 made under para 17;
ii) request 8 made under para 18;
iii) request 19 made under para 23; and
iv) request 38 made under para 38 but only in respect of (i) a,b,c and d; and
v) such responses to be filed by 5 pm 16 June 2023.
4. the directions as appear by Act of Court dated 6 December 2022 shall be varied as follows;
in respect of disclosure:
(i) the parties shall exchange lists of documents relevant to the issues identified in proceedings exhibited to an affidavit by 5 pm on 14 July 2023; and
(ii) disclosure or inspection of the listed documents shall be provided by 5pm on 28 July 2023;
5. the parties shall exchange any evidence by affidavit or statement of witnesses as to fact, such evidence to stand as their evidence in chief by 5 pm on 8 September 2023;
6. any expert evidence, which shall be limited to one medical expert per party, shall be exchanged by 5 pm on 6 October 2023;
7. the experts shall meet and set out in writing areas of agreement and disagreement in a joint report to be exchanged and filed by 5 pm on 27 October 2023;
8. skeletons arguments, authorities, evidence, chronology, a list of essential reading and a trial timetable, catering for the duration of counsels' speeches and the duration of cross-examination and re-examination of each witness shall be filed, served and uploaded to caselines by 5 pm on 10 November 2023;
9. before the end of November 2023 there shall be a pre-trial review with a time estimate of ½ day;
10. the hearing shall be listed on the first open date after the 4 December 2023 with a time estimate of 10 days;
11. parties are directed to make any application to vary any orders at least 7 days before such an order is due to be complied with and should expect cost consequences if they fail to do so; and
12. there shall be liberty to apply."
46. The costs incurred by B and C of and incidental to this Representation were reserved.
47. Finally, it is relevant to make some remarks on the role of the Court in respect of an application to the Court for consideration of disclosure to a beneficiary on the footing that C in these proceedings has made such an application and the Court's jurisdiction to consider the matter was engaged. The Trustee has indicated in such circumstances it would not wish to exercise its own discretion to make the decision but refer the matter to the Court in view of the disputes between C on the one hand and B on the other. There would be no question of surrender of discretion but the Court would nonetheless be invited to determine the matter. Two lines of authority which the Court is required to consider in such a scenario were explored by the Royal Court in Y Trust [2014] (1) JLR 199 where the Court, Commissioner Clyde-Smith presiding, considered at some length whether the Court's role in such circumstances would be limited to one of review of the Trustee's decision (if the Trustee had made a provisional decision in this regard) or whether the Court should exercise its own discretion with the decision made by the Trustee simply being a matter to be taken into account. Plainly in the latter scenario, the Court has a freer hand. Although the matter was left open in the case of Y Trust, the Royal Court referred to its own previous decision in U Limited v B [2011] JLR 452 where, having cited the relevant passage from Lewin, the Court concluded that "The Court will exercise its own discretion, the views of the trustee being no more than a factor to be taken into account by the Court in determining the application" (paragraph 19 of the judgment). In Y Trust, when considering the duty of trustees to account to the beneficiaries, the Court said at paragraph 22:
"22 This duty was emphasized in Schmidt v. Rosewood (9), which was of course decided after Rabaiotti, where the Privy Council approved the judgment of Powell, J. in Spellson v. George (10) (11 NSWLR at 315-316), the whole of which it said merited study. The Privy Council quoted this passage (at 315):
"At the risk of being regarded as overly simplistic, it is as well to start with the fundamental proposition that one of the essential elements of a private trust, be it a discretionary trust or some other form of trust, is that the trustee is subject to a personal obligation to hold, and to deal with, the trust property for the benefit of some identified, or identifiable, person or groups of persons .-‰.-‰."
The judgment of Powell, J. goes on to say (ibid., at 315-316):
"It is, so it seems to me, a necessary corollary of the existence of that obligation that the trustee is liable to account to the person, or group of persons for whose benefit he holds the trust property .-‰.-‰. and, that being so, the trustee is obliged not only to keep proper accounts and allow a cestui que trust to inspect them, but he must also, on demand, give a cestui que trust information and explanations as to the investment of, and dealings with, the trust property .-‰.-‰."
23 This obligation on the part of trustees has been described as an essential ingredient of trusteeship, which affords the beneficiaries a correlative right to have the court enforce the trustees' fundamental obligations to account."
48. In these circumstances, it would not assist for the Court's supervisory jurisdiction when considering issues of disclosure to be restricted only to a review of the decision of the trustee to disclose or decline to disclose as the case may be, requiring the Court to find unreasonableness or a failure to take into account relevant/identifying irrelevant considerations before it could intervene.
49. The alternative argument as enunciated by Briggs J in Breakspear v Ackland [2009] Ch 32 is that absent the trustee surrendering its discretion (when the Court will exercise its own discretion afresh), the Court whether considering a trustee inviting a blessing of its refusal to disclose or a disappointed beneficiary challenging the trustee's exercise of its discretion to decline disclosure, will involve a review of the trustee's decision only and not a fresh exercise of the Court's discretion. In my view, the decision in U Limited as to the role of the Court is to be preferred with the discretion of the Court to be exercised on usual principles, with the Court balancing the competing considerations in order to decide what is in the best interests of the beneficiaries as a whole. I note this approach is consistent with the view of the editors of Lewin on Trusts (20th Edition) expressed at paragraph 31-025.
50. This matter was not ventilated at length at the directions hearing, partly owing to the fact that no order could be made in the absence of Jurats.
Authorities
Trusts (Jersey) Law 1984.
Royal Court Rules.
Y Trust [2014] (1) JLR 199.
Lewin on Trusts (20th Edition).