Jersey Unreported Judgments

Trust - application to set aside distributions.

[2024]JRC107

Royal Court

(Samedi)

10 May 2024

Before     :

R. J. MacRae, Esq., Deputy Bailiff, and Jurats Austin-Vautier and Cornish

 

IN THE MATTER OF THE REPRESENTATION OF RBC TRUSTEES (JERSEY) LIMITED

AND IN THE MATTER OF THE L M WILL TRUST

AND IN THE MATTER OF ARTICLES 47G AND 47H OF THE TRUSTS (JERSEY) LAW 1984

Advocate J. P. Speck for the Representor.

judgment

the deputy bailiff:

1.        We heard this Representation on 15 April 2024 and reserved our decision. 

2.        By Representation dated 19 December 2023, RBC Trustees (Jersey) Limited ("the Trustee") of the L M Will Trust ("the Will Trust") seeks orders pursuant to Articles 47G and / or 47H of the Trusts (Jersey) Law 1984 ("the Law") setting aside six distributions made from the Will Trust between 8 June 2015 and 8 February 2018 in favour of B, one of the beneficiaries of the Will Trust.

The Will Trust

3.        L was the Settlor of various trusts established for wealth management and estate planning purposes in respect of which the Representor acted as trustee, including the Will Trust.  The Trustee was called RBC Trustees (CI) Limited when the Will Trust was settled, becoming known by its current name on 2 November 2017.  The Will Trust is governed by Jersey law and was established on 19 January 2012 with limited assets; further assets being contributed subsequent to L's death in2012. 

4.        The beneficiaries are B and her three adult children, together with the L M Charitable Foundation, a foundation registered in Jersey with exclusively charitable purposes.

The other trusts

5.        The Will Trust forms one of four trusts in a broader structure, all of which were settled out of assets deriving from L or her estate.  L was resident and domiciled in Singapore during her life and inherited assets from her father and brother.  They were successful businessmen.  As to the three other trusts in the structure, they are referred to collectively, together with the Will Trust, as "the Trusts" in this judgment.  They are as follows.

6.        First, the principal trust is the L M Income Trust ("the Income Trust") settled by the Trustee by declaration dated 5 August 2013, with the Trustee and another RBC entity, RBC Trust Company (Jersey) Limited, as co-trustee.  The discretionary beneficiaries of the Income Trust were, until very recently, B, her three children, the children and remoter issue of those three children, and the Foundation.  The assets of the Income Trust total approximately £10 million. 

7.        Secondly, the L M Property Trust ("the Property Trust") was settled on the same date as the Income Trust, with RBC Trust Company (Jersey) Limited as the sole trustee.  The discretionary beneficiaries are identical to the beneficiaries of the Income Trust, save the addition of another member of B's family.  They are however only discretionary beneficiaries of capital.  Income must be paid to the Income Trust and cannot be used to benefit the discretionary beneficiaries.  The assets of the Property Trust are worth approximately £2 million.

8.        Thirdly, and finally, the L M Investment Trust ("the Investment Trust") was settled on the same date as the other two trusts with the same Trustee as the Property Trust and with identical beneficiaries to the Property Trust (i.e. the same discretionary beneficiaries of capital in the form of the family members and the Foundation, and the same income beneficiary, in the form of the Income Trust).  Income from the Property Trust and Investment Trust must be paid to the Income Trust.

The advice

9.        Advice in relation to structuring was given to the Trustee by another RBC entity, namely RBC Wealth Planning International Limited ("RBC Wealth"), pursuant to a Letter of Engagement between RBC Wealth and the Trusts.

10.     The advice sought by the Trustee included advice in relation to the recommendation of structures that would better suit the family's goals and be more tax efficient in the future.  This was important, in particular for UK tax purposes, as both B and her three adult children currently live in and are tax resident in the United Kingdom.

11.     On the back of this advice, the Will Trust was established to hold such assets as L wished to be available to her daughter, B, and to B's children.

12.     Further advice was given by RBC Wealth in respect of a "three trust structure to enable the [B's] family to receive distributions from the Will Trust in the UK tax efficiently" (14 April 2013 email from RBC Wealth).  The context was advice from RBC Wealth that the capital in the Will Trust would be "clean capital for UK tax purposes". 

13.     The advice received from RBC Wealth recognised that when a non-UK resident trust received income or realises gains, these can be "pooled" as relevant income and stockpiled gains respectively and matched to distributions and benefits received by beneficiaries.  The advice said "Because of the amount of income that is likely to arise in the Will Trust, any benefits received by the UK resident beneficiaries will be matched to this relevant income and so be liable to income tax".  The advice went on to say that as the capital in the Will Trust was "clean capital" for UK tax purposes, an opportunity existed to create a series of trusts to keep the clean capital, the capital gains and the income separate from one another.  Accordingly, the advice went on to say that this could be achieved by establishing the three trusts that were ultimately created - one to hold an investment portfolio, one to hold property holding companies, and one to receive income from the two other trusts, i.e. the Income Trust.  All income from the first two trusts would be paid into the Income Trust as it arose. 

14.     The assets of the Will Trust would be limited to the sums due by way of repayment of interest free loans made to the first two trusts.  No income would be received in the Will Trust, nor would there be any capital gains within that trust.  Its assets would be limited to repayments made by the Investment Trust and the Property Trust, pursuant to interest free, non-secured loans made by the Will Trust.  Owing to the segregation of various asset classes in this way, RBC Wealth advised that distributions of capital could be made to UK resident beneficiaries from the Will Trust which could not be matched to any income or trust gains elsewhere, as there were no such gains in the Will Trust.

15.     On the basis of this advice, in 2013 a Jersey law firm prepared draft Trust Instruments for the three additional trusts which were subsequently executed as provided above.

16.     RBC Wealth gave thirty days' notice of its intention to terminate the provision of tax services to the Trustee on 30 August 2016, and the relevant individual advisers, two in particular, moved to another entity called RSM UK Tax Accounting Limited ("RSM") and RSM was engaged by the Trustee to take over responsibility for the tax affairs of the four Trusts.  RSM was given access to all relevant tax information provided by RBC Wealth, and RSM took over as the new tax adviser to the Trustee on or around 1 November 2016.  RSM was also engaged by B and two of her three children to give UK taxation advice and complete their respective UK tax returns.  From 2020 onwards, RSM also advised the third of B's children.  RSM continues to advise B and her children. 

The distributions

17.     Between 2015 and 2018, distributions were made to B out of the Will Trust pursuant to requests made by her in the sum of approximately £7.3 million.  Another distribution and certain loans were made which are irrelevant for the purposes of this judgment and accordingly we do not refer to them further.

Amount	Date	Beneficiary requesting distribution	Use to which distributions were put
£3,000,000.00	8 June 2015	B	B gave to her son W to assist in the purchase of a UK property, since sold at a loss with some of the proceeds used to buy another domestic property for W, and the balance retained towards its redevelopment.
£325,000.00	18 July 2017	B	B gave the monies to her daughter E to use it to purchase a domestic property in the United Kingdom.
£3,339,406.82	3 Aug 2017	B
£65,000.00	12 Dec 2017	B	B used the funds to pay invoices in respect of the UK domestic property purchased by her daughter E.
£347,325.91	26 Jan 2018	B
£274,300.00	8 Feb 2018	B	B gave the funds to her daughter E who used them to make an interest free loan to a third party repayable on sale of a property in the UK.  The loan was written off by E in September 2021.
Total £7,351,032.73

The UK tax issues

18.     The distributions above were made by the Trustee in the belief that they were capital payments which would not be matched to any relevant income or gains for UK tax purposes in accordance with advice given by RBC Wealth, such advice being subsequently adopted and repeated by RSM.  This was, as indicated above, advice given on the footing that there was no relevant income or capital gains in the Will Trust for matching purposes and that distributions from the Will Trust could not match to income or gains in any of the other Trusts. 

19.     However, in July 2021, RSM advised the Trustee that as B was a beneficiary of both the Will Trust and the Income Trust, any benefits that she received from the Will Trust could in fact be matched to income received by the Income Trust.  This came as a surprise to the Trustee.  Indeed, the Trustee described the advice as "a surprise" in its written response and said that the family had always been within the beneficial class of the Income Trust and that the author of the email from RSM and his colleagues had advised throughout the process of formation of the structure and since and "at no point have you informed or advised us that [the family] should not be beneficiaries of the Income trust...".  The letter then went on to say that distributions from the Will Trust had been made on the basis of the advice that there were no matching income or gains.

20.     The Trustee therefore engaged Burges Salmon LLP to provide a second opinion and an assessment of the situation, as well as to provide ongoing UK taxation advice in relation to the Trusts.  The advice from Burges Salmon was before us and Burges Salmon continue to advise the Trustee and the trustees of the other Trusts.

21.     We considered the Burges Salmon advice in detail.  The advice the Trustee had previously received was incorrect, particularly in respect of income arising in other Trusts within the structure which shared the same beneficial class of UK residents.  Accordingly, the distributions will trigger UK tax for the recipient beneficiaries if they were resident in the UK at the relevant time(s) for tax purposes and there was relevant income and / or gains to which the distributions could match. 

22.     The matching regime under UK tax law applies to income in a different way to the way the matching regime applies to gains.  This can mean that income from a particular trust is capable of being "matched" to a particular distribution or benefit even though gains cannot be matched or vice versa.  This is partly because the matching regime applicable to gains is a trust specific regime, whereas the matching regime applicable to income is more generic. 

23.     In the context of the distributions in this case, they can only match to gains which arise within the Will Trust.  The nature of the structures mean that gains do not arise in the Will Trust and the distributions cannot match to any gains arising in the other three Trusts.  However, Burges Salmon say:

"However, the income matching rules are quite different.  A key point is that they do not necessarily operate on a "trust by trust" basis.  Instead, because of the way in which the Structure was created, income (including deemed forms of income such as offshore income gains) arising anywhere in the Structure can potentially match to the ....distributions if that income is considered "available" to benefit the relevant recipient beneficiaries."

24.     As the individual beneficiaries of the Will Trust were also discretionary beneficiaries of the Income Trust, then any income arising anywhere in the other three Trusts (including underlying companies) could potentially be used to benefit the individual beneficiaries of the Will Trust:

"This means that all such income can potentially be considered "available" for the purposes of the income matching rules."

25.     Accordingly, distributions from the Will Trust can in principle match to income arising in the other three Trusts so as to trigger income tax for the relevant recipient beneficiaries at their respective marginal rates.

26.     There has been more than sufficient income within the Structure to fully match all of the taxable benefits conferred by the distributions, although such income is not always matched in the tax year in which the distribution was made.

27.     Burges Salmon estimate that the distributions have given rise to UK tax liabilities for B in the sum of £3,307,964.73, plus interest on unpaid tax in the sum of £447,404.46, making a total of £3,755,369.19. 

28.     B may in addition be potentially liable to penalties on this unpaid tax depending upon whether she had taken "reasonable care" / had a "reasonable excuse" for non-payment.  In this case, as she was throughout acting in accordance with independent advice, B would argue that penalties should not arise.  Nonetheless, that would be a matter for HMRC and subsequent discussions / appeals.

29.     The income tax will arise as a consequence of B being assessed at a marginal rate of approximately 45% by reference to the total value of the distributions made to her.

30.     If the distributions were set aside then B's tax position would "significantly improve" as even if the distributions were set aside then B would, according to Burges Salmon, be likely to be considered to have received a taxable benefit.  Burges Salmon suggest that the benefit would (for UK tax purposes) be broadly analogous to the benefit conferred by an interest free loan, so her UK tax liabilities would not be reduced to nil but would be reduced materially.  Burges Salmon has calculated that her UK liability to tax in those circumstances would be £509,330.89, plus interest of £43,864.82, making a total of £553,195.71.  It can be seen that B's estimated potential tax savings would be in the region of £3.2 million in these circumstances.

31.     We understand a sum representing a good estimate of the tax owing by B in the event that the distributions are set aside was paid by B by way of a payment of account to HMRC in the sum of £575,475 on 20 February 2024.

32.     We were advised that the total value of the Structure is now in the region of £70 million and the value of the loans due to the Will Trust is approximately £62 million.  As to the future, it is plain from the advice of Burges Salmon that had B and her children been excluded in an appropriate manner from benefit under the Income Trust then this ought to have prevented the distributions triggering a liability to UK tax for B.

33.     In the first affidavit sworn on behalf of the Trustee, it was noted that it was the intention of the Trustee to undertake a restructuring of the Trusts in order to avoid a similar situation arising in the future.  This would allow the Structure to operate, from a UK tax perspective, as it had always intended to do and formalise the informal understanding that the capital within the structure represented by the loan interest in the Will Trust will be available to benefit B and her family, but the income generated from that capital would be used for charitable purposes. 

34.     Accordingly, in accordance with further tax advice, a Deed of Exclusion was executed on 5 April 2024 which excluded B, her children, and any possible partners from benefit under the Income Trust and removed, but did not exclude, the children and remoter issue of the three children from the beneficial class of the Income Trust with immediate effect.  Because income from the Property Trust and the Investment Trust is paid over to the Income Trust, such an exclusion should prevent matching of income arising within the Income Trust, the Property Trust or the Investment Trust to any distributions made out of the Will Trust in future. 

35.     The Trustee says that this step also affords it maximum flexibility as in respect of how it might respond to any order made by the Court in these proceedings. 

The relief sought

36.     The relief sought in this application was, we were told, a matter that had been considered both by Burges Salmon and leading counsel, Robert Ham KC, both of whom were present in Court to assist in relation to the UK tax consequences of the events referred to above.

37.     The draft order sought the following declaratory relief:

"1 Pursuant to Articles 47G and 47H of the Trusts (Jersey) Law 1984 that the Relevant Distributions are voidable and are hereby set aside and to be of no effect from the time they were made.

2. If and so far as any Relevant Distribution has been transferred to any other person or replaced by any other asset:

           a. the Representor can follow it into the hands of any such person unless that person is a bona fide purchaser for value without notice; and

           b. the Representor can trace into the replacement asset the value applied in acquiring it and assert a lien over that asset for that value.

3. If and so far as any Relevant Distribution is not recovered in accordance with paragraph 2 above B is liable to pay its value to the Representor."

38.     We were told that B and the other beneficiaries of the Trust supported the Trustee's Representation and were content with the relief sought.  They had received correspondence from counsel for the Trustee prior to the proceedings being issued, then, in accordance with an Act of Court received the Representation and affidavit in support and had also met counsel for the Trustee personally.  This consultation extended to the Foundation. 

39.     As to the costs of and incidental to these proceedings which will be significant, although the Trustee was seeking an order that in the first instance they should be met from the assets of the Will Trust, the Trustee informed us (and this is indeed the Court's expectation) that the costs of and incidental to these proceedings should ultimately be met by RBC Wealth and / or RSM in such proportion as is appropriate. 

40.     We now turn to consider the relief sought.

Article 47G of the Law - mistake

41.     Article 47G provides as follows:

"47G Power to set aside the exercise of powers in relation to a trust or trust property due to mistakes

(1) In this paragraph, "person exercising a power" means a person who, otherwise than in the capacity of trustee, exercises a power over, or in relation to a trust, or trust property.

(2) The court may on the application of any person specified in Article 471(2), and in the circumstances set out in paragraph (3), declare that the exercise of a power by a trustee or a person exercising a power over, or in relation to a trust, or trust property, is voidable and -

           (a) has such effect as the court may determine; or

           (b) is of no effect from the time of its exercise.

(3) The circumstances are where the trustee or person exercising a power -

           (a) made a mistake in relation to the exercise of his or her power; and

           (b) would not have exercised the power, or would not have exercised the power in the way it was so exercised, but for that mistake, and the mistake is of so serious a character as to render it just for the court to make a declaration under this Article."

42.     Article 47B(2) of the Law defines "mistake" for the purposes of Article 47G:

"(2) In Articles 47E and 47G, "mistake" includes (but is not limited to) -

           (a) a mistake as to -

                       (i) the effect of,

                       (ii) any consequences of, or

                       (iii) any of the advantages to be gained by, a transfer or other disposition of property to a trust, or the exercise of a power over or in relation to a trust or trust property;

           (b ) a mistake as to a fact existing either before or at the time of, a transfer or other disposition of property to a trust, or the exercise of a power over or in relation to a trust or trust property; or

(c) a mistake of law including a law of a foreign jurisdiction."

43.     Article 47I(2)(a) provides that an application under Article 47G(2) may be made by, inter alia, the trustee who exercised the power concerned.  It is well settled that what constitutes a "mistake" for the purposes of Article 47G includes a mistake as to the financial consequences or advantages to be gained by the exercise of a power over or in relation to trust property (see Representation of Crestbridge Trustees Limited and Anor re Avocado Trust [2021] JRC 171 - where the Court stated that it "has been established that the mistake as to the tax consequences of a transfer or other disposition of property to a trust may amount to a mistake of sufficiently serious character as to render it just for the Court to grant relief under Article 47G of the Law").

44.     Applying the three statutory questions to the facts:

(a) Was there a mistake on the part of the Trustee in relation to the making of the distributions?

The Trustee made the distributions under a mistaken belief that they were capital payments that would not be matched to any relevant income or gains for UK tax purposes in accordance with tax advice that was incorrect.  That mistaken belief arose directly as a consequence of the tax advice referred to above.  Subsequent advice from Burges Salmon confirmed that the distributions will in fact match to income arising in the other Trusts in the structure and so trigger significant and unforeseen income tax consequences for B. 

(b) Would the Trustee have made the distributions but for that mistake?

The affidavit evidence sworn on behalf of the Trustee makes clear that had the adverse tax consequences been understood by or known to the Trustee, i.e. had there been no mistake, the Trustee would not have exercised the power to make the distributions in the way that it did.

(c) Was the mistake of so serious a character as to render it just for the Court to make the declaration sought?

As the Royal Court noted in G Trust [2019] (1) JLR 175, there are two discrete considerations within this final question which the Court explained as follows:

"17...once it is satisfied that there has been a mistake made in relation to the transfer into trust and that that transfer would not have been made but for the mistake, the court needs to ask itself whether the mistake was of such a serious character as to render it just for the court to make a declaration. The grammar of the question makes it plain that there are two component parts; the first is to whether the mistake was of a serious character and the second as to whether it is just for the court to make a declaration. The seriousness of the mistake will often be analysed by reference to the effect both on the transferor and potentially on the trustees and beneficiaries of the trust.

.....

18 The question of justice is more nuanced. It is well settled that mistakes in relation to tax are capable of being taken into account by the court in deciding whether or not to set aside a transfer or disposition into trust or indeed the trust itself. In In re Strathmullen Trust (4) the court said this (2014 (1) JLR 309, at paras. 23-25):

           "23 ... We note also that in Pitt v. Holt ... HMRC contended that a mistake which related exclusively to tax could not in any circumstances be relieved. The submission was that Parliament's general intention, in enacting tax statutes, was that tax should be paid on some transactions of a specified type, whether or not the tax payer is aware of the tax liability. This submission was rejected by the Supreme Court as being much too wide and unsupported by principle or authority (see [2013] 2 AC 108, at para. 132).

           24 We also note that in his judgment, Lord Walker said this (ibid ., at para. 135): 'Had mistake been raised in Futter v. Futter there would have been an issue of some importance as to whether the court should assist in extricating payments from a tax- avoidance scheme which had gone wrong. The scheme adopted by Mr. Futter would by no means be at the extreme of artificiality (compare, for instance, that in Abacus Trust Co. (Isle of Man) v. National Society for the Prevention of Cruelty to Children [2001] STC 1344) but it was hardly an exercise in good citizenship. In some cases of artificial tax avoidance the court might think it right to refuse relief, either on the ground that such claimants, acting on supposedly expert advice, must be taken to have accepted the risk that the scheme would prove ineffective, or on the ground that discretionary relief should be refused on grounds of public policy. Since the seminal decision of the House of Lords in WT Ramsay Ltd. v. Inland Revenue Comrs [1982] AC 300 there has been an increasingly strong and general recognition that artificial tax avoidance is a social evil which puts an unfair burden on the shoulders of those that do not adopt such measures. But it is unnecessary to consider that further on these appeals.'

           25 There is clearly more than one approach that one could take to what Lord Walker describes as an issue of some importance in the United Kingdom, and the arguments would be further complicated in this jurisdiction by a recognition that the social evil of artificial tax avoidance which puts an unnecessary burden on the shoulders of those who do not adopt such measures might receive a different emphasis where it is not our domestic taxation system which is being avoided. The complexity of such arguments, including the difficulties in establishing what amounts to a social evil where the relevant jurisdiction's legislature can be assumed to have taxed everything that it intended to tax (which makes avoidance, on one analysis, entirely legitimate) emphasizes that in the absence of any contentions to the contrary, it is unnecessary to consider such an issue further in this case.""

45.     The Court in G Trust then went on to note that although it was settled that mistakes in relation to tax are capable of being taken into account by the Court in deciding whether or not to set aside a transfer or disposition into trust, certain English authorities have drawn a distinction between legitimate tax planning and what was described by Lord Walker in Pitt v Holt as the "social evil" of "artificial tax avoidance".

46.     The Jersey Courts have not determined that what might be objectively described as aggressive tax planning would prevent an application for relief under Article 47G from succeeding.  However, it is a matter that the Court may take into account, as the Court is always exercising a discretion under Article 47G as the Court "may" make the declaration sought and needs to consider whether it is "just" to do so.  No such considerations apply in this case in any event.  The opinion from Robert Ham KC, who gave English tax advice to the Trustee in respect of this application, describes the original Structure as "ineffective", and noted the distinction drawn by Lord Goff in Ensign Tankers [1992] 1 AC 655 at 691 between "tax mitigation" and "unacceptable tax avoidance".  The latter was said to "typically [involve] the creation of complex artificial structures by which, as though by a wave of a magic wand, the taxpayer conjures out of the air a loss, or a gain, or expenditure, or whatever it may be, which otherwise would never have existed".  Mr Ham says "In my opinion, the planning in the present case fell fairly and squarely within the category of tax mitigation as opposed to unacceptable tax avoidance".  We accept this and proceed on that basis. 

47.     Having regard to the UK tax payable by B as matters stand and the position that will pertain if the distributions are set aside, this was clearly a serious mistake with significant consequences.  The mistake was an honest one made by the Trustee having regard to advice that it had no reason to doubt when received.  The purpose of the Structure was to allow B and her family to enjoy the benefit of the assets in a legitimate tax efficient fashion, whilst benefitting the charitable foundation via the Income Trust.  The mistake went to the heart of the rationale for the setting up of the Structure.  If the relief is not granted then the Trustee will need to resort to hostile professional negligence litigation against RBC Wealth and / or RSM which would prolong the resolution of the matter, add to the uncertainty and doubtless lead to irrecoverable costs which is a feature of professional negligence litigation to the detriment of all parties.  Accordingly, we were satisfied that the mistake was of so serious a character as to render it just for the Court to make the declaration sought. 

48.     So, the first order for relief that we grant (pursuant to Article 47G of the Law) is to declare that relevant distributions are voidable and set aside and are, and were, of no effect from the time that they were made.

Article 47H of the Law - inadequate deliberation

49.     In view of our conclusions in respect of the relief sought by reason of mistake, it is not strictly necessary to consider relief by reason of inadequate deliberation.  The ambit of Article 47G and 47H may in certain circumstances overlap and do so in this case. 

50.     The relevant provisions in respect of inadequate deliberation under Article 47 are as follows:

"(2) The court may on the application of any person specified in Article 471(2), and in the circumstances set out in paragraph (3), declare that the exercise of a power by a trustee or a person exercising a power over, or in relation to a trust, or trust property, is voidable and - (a) has such effect as the court may determine; or (b) is of no effect from the time of its exercise.

(3) The circumstances are where, in relation to the exercise of his or her power, the trustee or person exercising a power - (a) failed to take into account any relevant considerations or took into account irrelevant considerations; and (a) would not have exercised the power, or would not have exercised the power in the way it was so exercised, but for that failure to take into account relevant considerations, or that taking into account of irrelevant considerations.

(4) It does not matter whether or not the circumstances set out in paragraph (3) occurred as a result of any lack of care or other fault on the part of the trustee or person exercising a power, or on the part of any person giving advice in relation to the exercise of the power."

51.     The Court will set aside the exercise of a fiduciary power if, in the case of its "exercise by a trustee" the circumstances are as set out in Article 47H(3).  The Royal Court has repeatedly held that tax considerations may be "relevant considerations" for the purpose of Article 47H(3). 

52.     The Court will apply an objective test when considering whether or not the person exercising the fiduciary power would have acted differently had they taken into account relevant considerations or declined to have taken into account irrelevant ones.

53.     The Court has exercised its powers to set aside transactions under Article 47H on several occasions, including in In the Matter of the Representation of the Grundy Trust [2020] (1) JLR 153, in which property comprised in a Jersey trust included UK residential property which faced an impending charge to inheritance tax as a result of changes introduced by the Finance (Number 2) Act 2017.  The trustees responded to this tax issue by exercising their power to irrevocably exclude the settlor and his wife from benefit under the trust without consulting the settlor and without considering less draconian steps which might have been available to them, including excluding the settlor from benefit under the trust, but excluding the settlor's wife from benefit during the settlor's lifetime only, which would have been sufficient for UK tax purposes.  The Court held that the exercise by the trustees of their powers whereby they excluded the settlor's wife from benefit was voidable and should be set aside on the basis that the trustees failed to take into account one or more relevant considerations and/or took into account one or more irrelevant considerations, and would not have exercised the power in the way that they did but for that failure.

54.     Applying the statutory questions as follows:

(a) Did the Trustee fail to take into account any relevant considerations or take into account irrelevant considerations?

The Trustee made the distributions on the incorrect understanding that they were capital payments that would not be matched to any relevant income or gains for UK tax purposes in accordance with incorrect tax advice as referred to above.  The tax consequences referred to in the Burges Salmon advice were relevant considerations that the Trustee failed to take into account.  Further, the incorrect advice from RBC Wealth and / or RSM amounted to irrelevant considerations that the Trustee should not have taken into account. 

(b) Would the Trustee not have exercised the power in the way that it did but for its failure to take into account relevant considerations and / or its taking into account of irrelevant considerations?

The Trustee is clear on this - had the Trustee understood the true position and accordingly taken into account that relevant consideration, and / or had the Trustee not taken into account the incorrect advice received which was an irrelevant consideration, then the power exercised by the Trustee to make the distributions would not have been exercised in the way that it was.

55.     Accordingly, the Court would, if required, also have avoided the distributions and declared them to have been of no effect under Article 47H.

Consequential relief

56.     The Court is also invited to make consequential orders under Article 47I(3) of the Law.  The Court has a wide power to make such orders.  The precise boundaries of the Court's power in this regard have not been set, but there are limits to the Court's powers to grant such consequential relief. 

57.     Under Article 47I the Court has the power, without prejudice to its general powers under Article 51, to make "consequential upon a declaration made under any of the Articles 47E to 47H, make such order as it thinks fit".  The Court said in the Grundy Trust [2020] (1) JLR 153 at paragraph 35:

 "That is not to say that the court is entitled to re-write history, or to make a new decision which the trustee wished it had made at the time. That is clear from the statute and from case law. In In re B Trust (1), the court agreed with the representor that transfers into trust could be voided on the grounds of mistake under art. 47E. However, the representor went further and asked the court to give effect to certain intentions that the representor had at the time of making the transfers into trust. Merely voiding the transfers into trust meant that the assets would fall back into the representor's estate and this would not be as tax efficient as he had intended. The court was asked to make a declaration that the transfers were not merely voidable but should take effect as gifts to the representor's wife. The court refused and said ([2019]JRC035, at paras. 41-42):

           "41. ... This Court will not be drawn into such schemes. It is one thing to make orders as to the validity of transactions where those orders might have tax consequences, and it is quite another thing to select for one of the parties which order to make so as to achieve the best taxation outcome. That is no part of the business of this Court.

           42. The second submission which Advocate Brown made in this connection was that Article 47E contains innovative powers as described in the Crociani case and there is no reason why the Court should not therefore direct the repayment of money not to the Representor but to his wife. For similar reasons as described above, we are not prepared to do this. It requires the Court to take a positive step to improve the taxation outcome for the Representor as though that were the objective itself. It may be the Representor's objective, but it is not the objective of the Court.""

58.     The Court's powers under Article 47E were considered by the Court of Appeal in B & P Paribas Jersey Trust Corporation v Crociani [2018] JCA 136A.  Article 47E is concerned with the Court's powers to set aside a transfer or disposition of property to a trust due to mistake.  The same principles arise in relation to the exercise of the Court's discretion upon making a declaration. 

59.     The Court of Appeal said:

"87.      In our judgment this construction of Article 47E (2) is consistent with the general approach of the Trusts Law in establishing overall principles and allowing them to be developed flexibly by the Royal Court.  In essence, the legislature has conferred upon the court a discretion to determine which of the three courses it would follow if satisfied that the mistake was of so serious a character as to render it just for the court to make any declaration at all under that Article.

....

93.... The innovation of the Article lies in confirming that the court has alternate powers (a) to allow some effect to the transfer or (b) to declare that it has been of no effect.  That provision, however, may be little more than a reflection of a need to give consideration to the interests of donees and third parties and of the possible availability of change of position defences (as compared with the position of the bona fide purchaser for value and without notice whose protection is maintained under Article 47I(4)).

94.      Turning to guiding principles in the exercise of this jurisdiction, the court must first identify, as the Royal Court did below, that the application has been made by an appropriate person and that there has been a mistake bearing the characteristics required by the statute.  The court then has a discretion as to whether to declare the transfer voidable and, the jurisdiction being equitable, it may be that, even with the required characteristics, the whole circumstances militate against a declaration.  Having determined to make such a declaration the court will bear in mind for its consequent orders that the transfer or disposition will have had legal effect until the point of the declaration.  It is only upon the making of the declaration that the trustee will become a bare trustee of the transferred funds or property: declaring the transfer to be of no effect will not result in the relationship of trust never having existed.  In considering the effect of the declaration upon donees and third parties (and in this respect the trustee is entitled to be considered as a potentially affected third party) the court may require to adjudicate upon change of position defences.  Accordingly, in exercising its discretion as to the appropriate remedies and consequential orders to authorise, the court will have to take into account all factors relevant to those issues.

....

97.      Given that we construe Article 47E to be providing a flexible framework, we do not think that it is appropriate to attempt an exclusive list of factors which will be relevant from case to case; but in our judgment potentially many factors could be relevant considerations in the process of identifying the appropriate declaration.  In some instances the parties may be indifferent as to the date as at which the transfer is avoided: an example is the simple mistake, with no taxation consequences and no distributions in the intervening period.  On the other hand, a mistaken transfer may well have unattractive taxation consequences and the court must be persuaded that a declaration that the transfer has had no effect is a proper declaration to make.  Equally, there may be competing factors to be taken into consideration in identifying which, if any, of the effects of a transfer are to be declared to be retained.  Where, as here, the transferee is no longer in possession of the assets transferred, the exercise will be more complex."

60.     In the subsequent decision of the Court of Appeal in Hawksford [2021] (2) JLR 20, the Court considered an appeal against the refusal of the Royal Court to avoid certain transactions under Article 47G and to declare that another transaction could take effect as a gift and not a sale.  At paragraph 50 of its decision, the Court of Appeal rejected the suggestion that the Court's powers under the relevant Articles (47E to 47H) could be interpreted so as to give the Court the power to declare a transfer, disposition or exercise of power to be voidable, and in the same declaration order that it may have effect:

"Succinctly, it is one thing to give the court a discretion to choose between complete or partial avoidance, and not to be confined to an all or nothing choice as might have been the position before the 2013 amendment to the Trusts Law. It is another thing to give the court a power to rectify so as to replace something erroneous with a different thing which would have been better but might not have been the thing actually done or intended at the time."

61.     The Court went on to approve the decision of the Royal Court in Grundy.

62.     However, these decisions do not touch directly on the power of the Court to make orders consequential upon the declaration that we have made.  In the Andha Trust, [2023] JRC 080 the Court said this at paragraph 88:

"The Court has a power to declare that the exercise of a power is voidable and has such effect that the Court may determine and, under Article 471(3), make such orders as it thinks fit consequential upon such a declaration. This extends to making orders affecting a contract with a third party and in that regard our attention was drawn to the decision of the Royal Court in Crestbridge Trustees Limited v Avocado Limited, where the Court set aside such an agreement in the following terms:

           "40. Accordingly, we granted the application of the Trustee and ordered that the exercise of the power by the Trustee by which it procured that the Company holds the trust property as nominee for the Trustee is avoided and of no effect from the time of its exercise pursuant to Article 47G(2)(b), or Article 47H(2)(b) of the Law. Further, we ordered pursuant to Article 471(3) of the Law that in consequence the Nominee Agreement made between the Trustee and the Company is set aside and is void and of no effect from the time it was entered into and that the declaration of bare trust by the Company is also set aside on the same terms.""

63.     In the Andha Trust, the Court held that even if the representor had satisfied it in respect of the statutory test under Article 47H, the Court would have exercised its discretion to decline to grant the relief sought.

64.     In this case, we are invited to grant the following consequential relief, namely that if and so far as any distributions have been transferred to any other person or replaced by any other asset:

(i)        The Trustee may follow it into the hands of any such person unless that person is a bona fide purchaser of a value without notice (tracking the limitation on the Court's powers contained in Article 47I); and

(ii)       The Trustee may trace into the replacement asset the value applied in acquiring it and assert a lien over that asset for that value.

65.     The Court does not appear to have been asked to grant similar consequential relief under 47I(3) previously.  The Court must be careful not to grant relief which may prejudice the interests of third parties who are either not before the Court or, in the case of the beneficiaries in this case, convened to these proceedings but not having made submissions in respect of the relief in question.  We note that although the beneficiaries have executed documents to the effect that they have considered the draft Representation of the Trustee and support the relief sought in it, the relief in the Representation that was issued does not extend to seeking any express relief save for the declaratory relief granted at paragraph 48 above.  The terms of the consequential relief sought do not determine the rights to property now held by the beneficiaries of the Trust or by third parties, but provide that the Trustee may follow the distributions into the hands of recipients other than bona fide purchases for value without notice and trace the same into assets consequentially purchased.  Other defences may possibly be available to beneficiaries/recipients of the funds such as change of position or other defences upon which the Court has not been addressed.  Whether or not such claims (or defences) have merit may need to be determined in subsequent proceedings, either in the Jersey Courts or - having regard to the location of the property in question - the English Courts.

66.     Frequently, in circumstances where the Court is asked to grant declaratory relief under Articles 47G or 47H, the recipient beneficiaries are deemed to hold the assets distributed on bare trust for the trustee.  However, in this case B has not retained the distributions.  The effect of the consequential relief sought would not be that the properties acquired by the children using money distributed to B from the Trust will immediately be held on bare trust for the Trustee.  But if granted it would be open to the Trustee to assert a lien and / or trace the Trust funds into these properties, adopt the purchases made by the children, and thereby acquire an interest in the properties on behalf of the Trust.  These are matters to be considered between the Trustee and respective beneficiaries in the first instance and should not be pre-judged by the consequential orders that we were asked to make.  Counsel for the Trustee said the Trustee's ultimate decision in relation to these issues will be a fiduciary one taken in the best interests of the beneficiaries as a whole.

67.     In the circumstances, although we do not doubt the Court has the power to grant the declaratory relief sought, it would be wrong to grant such relief in the absence of hearing from the beneficiaries/any other persons affected.

68.     We also order that the Trustee may have its costs of and incidental to the Representation from the assets of the Will Trust on the indemnity basis, and that there be liberty to apply.

Authorities

Trusts (Jersey) Law 1984. 

Representation of Crestbridge Trustees Limited and Anor re Avocado Trust [2021] JRC 171. 

G Trust [2019] (1) JLR 175. 

Ensign Tankers [1992] 1 AC 655. 

In the Matter of the Representation of the Grundy Trust [2020] (1) JLR 153. 

B & P Paribas Jersey Trust Corporation v Crociani [2018] JCA 136A. 

Hawksford Trustees Jersey Limited v P [2021] (2) JLR 20. 

Andha Trust, [2023] JRC 080