Before : |
R. J. MacRae, Esq., Deputy Bailiff, and Jurats Christensen and Entwistle |
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
the deputy bailiff:
1. The background to this matter is set out in the judgment dated 28 June 2023 reported at [2023] JRC 107 at paragraphs 3 to 23 inclusive.
2. On 19 March 2024, we determined the Trustee's summons for directions which was dated 6 December 2023 and sought the following relief, namely:
(i) That the Court grants leave for the Trustee to make a distribution of £1 million to the First Respondent, previously referred to as ("B"), out of the assets of the Trust, or in the alternative;
(ii) That the Trustee be directed, subject to any further order of the Court, not to exercise its dispositive powers as trustee pending determination of the intimated adverse claim to the Trust property by the Second Respondent - referred to as ("C") in previous judgments - on behalf of the estate of her late mother, ("G").
3. We now give our reasons for the decisions that we announced at the end of the hearing on 19 March 2024.
4. We first set out the supplementary background to the hearing that took place, summarising the principal events that have occurred since the Court last sat substantively in this case on 3 November 2023, the reasons for the Court's decision being given in its subsequent judgment dated 30 November 2023 ("the November judgment") reported at [2023] JRC 242 then set out the positions of the three parties represented at the hearing, before setting out our decision and the reasons therefore.
5. Prior to doing so, it is recalled that one of the matters before the Court on 6 June 2023 was the paraphernal claims made in C's Points of Claim in these proceedings referred to at paragraphs 34 to 41 of the judgment. Those claims averred that, as a matter of ("Country A") law, certain of the Trust assets were paraphernal in nature in that they remained the property of G's estate and that the Settlor, ("F"), did not have legal or beneficial title to such property when he purported to settle the same under the terms of the Trust.
6. The Court held that the paraphernal assets claim was hostile to the Trust and should, in accordance with normal principles, be brought by way of Order of Justice. At paragraph 39, the Court held that "such proceedings would not be permitted to derail or delay these proceedings".
7. It was conceded that there had been no letter before action prior to the pleading of the claim made in relation to the paraphernal assets, and that the relevant paragraphs in the Points of Claim were not particularised in detail. There was, for example, no pleading to the effect that G had not given her consent to the Settlor to settle the assets on trust and 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 the Trust. There was no indication or reference to evidence in the pleading to the effect that the assets in question (which themselves had not been identified) were settled on the Trust absent the consent of G.
8. Accordingly, the Court struck out the relevant paragraphs from the Points of Claim under Royal Court Rule 6/13(c) and indicated that C was entitled to pursue those claims by way of Order of Justice if she so wished.
9. When the case came on again on 3 November 2023, no such Order of Justice had been issued.
10. In the November judgment, the Court noted "Importantly, as will appear from the resume below, at no stage in the pleadings, as summarised albeit briefly in the June judgment referred to, does [C] attack or seek to set aside the Trustee's appointment of [B] as a beneficiary".
11. In November, the Court was principally concerned as to whether or not it should accept the Trustee's invitation to accept the surrender of its discretion as to whether or not the Trustee should make available a facility of £1 million for the purpose of staged distributions to B from the assets of the Trust set against her notional allocation under the Trust. For the reasons set out in the November judgment, the Court declined to accept the Trustee's invitation that it should surrender its discretion to the Court.
12. The Court reviewed the relevant correspondence and noted (for example) that on 26 April 2023, counsel for the First Respondent ("B") noted in correspondence that the validity of the Deed of Addition (from 2017) by which B was added to the beneficial class of the Trust had not been challenged by C in these proceedings, and therefore there was no question as to her status as a beneficiary.
13. On 20 June 2023, shortly after the hearing that had taken place earlier in the month, counsel for C stated in an email that his client's paraphernal assets claim would "shortly be bought by way of Order of Justice proceedings..." and would claim that the paraphernal property of G formed "at the very least, a substantial part of the Trust property and could not validly be settled or added to form part of the Trust property".
14. The Court noted at paragraph 16 of the November judgment:
"No such Order of Justice has yet been served and whether or not it would have such a material effect on the Trustee's position would depend upon its terms."
15. The Court went on to note at paragraph 18 that the Points of Claim and other pleadings filed on behalf of C at no time challenged the beneficial status of B, and that counsel for C had said during the hearing that "the appointment of [B] as a beneficiary is not disputed".
16. The parties have now obtained a transcript of the hearing that took place on 3 November 2023. Counsel for C (see page 21 of the transcript) when asked to clarify that the appointment of B was not challenged in these proceedings, said:
"You are absolutely right, Sir. The actual appointment document itself is not challenged. [B's] status is not challenged."
17. Having refused to accept the Trustee's surrender of discretion broadly on the footing that this was a difficult decision for a trustee to make but not a case where a trustee should be permitted to surrender its discretion, the Court directed the Trustee to decide on the matter within twenty-one days and to inform the Respondents of the decision and the reasons for it. The Court also directed the Trustee (paragraph 43) to proceed when considering its decision on the footing that B's status as a beneficiary was not challenged in these proceedings. The reason for making that direction was in part because the Trustee was for some time during 2023 under a misapprehension that B's status as a beneficiary was in contention and that had plainly coloured its approach to the issue of whether or not to make a distribution.
18. In accordance with the Court's direction, the Trustee went on to make a decision, communicated by letter to counsel for the Respondents on 24 November 2023.
19. The letter stated, inter alia, that the Trustee had decided to accede to B's request, subject to her executing a standard deed of release and indemnity in respect of distributions. The Trustee said that in making a decision, it had taken into account the following relevant considerations which we summarise briefly:
(a) B's needs, as explained by her counsel to the Court, noting that she said she was experiencing difficulty in meeting her legal expenses and was having to rely on personal savings. It was noted that B was not saying that she had no assets and had not provided any supporting evidence for the assertion that she was suffering cashflow issues and, accordingly, the Trustee said that it gave "reduced weight" to this factor.
(b) The Settlor's wishes as expressed in the Letters of Wishes. The Trustee noted that those wishes were challenged by C and the Trustee was not in a position to assess the strength of that challenge, but nonetheless took them into account but gave less weight to the Letters of Wishes than it otherwise would have done.
(c) The Trustee considered that the relationship of B to the Settlor (wife) should be taken into account and given weight to.
(d) The wishes of the beneficiaries. The Trustee took these into account but owing to the various challenges and overall uncertainty as to the outcome gave these slightly less weight than usual.
(e) The wishes of C. C claims that she is a beneficiary, notwithstanding the current position is that she is not. Owing again to the challenges and uncertainties, the Trustee gave limited weight to C's views.
(f) C's complaint that the distribution would, in effect, constitute a prospective costs order. The Trustee did not give this complaint material weight as what was being requested was not a prospective costs order. A beneficiary was seeking a sum out of their notional allocation of funds and the Court's decision in relation to the ultimate burden of costs was unaffected. Should B lose, then a costs order could be made against her and enforced against her assets.
(g) The allegation the Trustee was on notice of a rival claim to the trust fund, namely a claim from the estate of G, that the assets of the Trust were her paraphernal assets. The Trustee said "This allegation was made very late in the day" and had been "raised without any particularity and did not appear to have been pressed". The Trustee referred to the paragraphs of the June judgment referred to above, subsequent correspondence, the terms of the November judgment, and the fact that the paraphernal assets issue was "not relied on at all" by counsel for C at the hearing on 3 November 2023, nor mentioned in the Skeleton Argument filed on her behalf as a reason why the Trustee should not make a distribution. Subsequently, the Advocates of C on 21 November 2023 (three days before the Trustee made its decision) had alleged, the Trustee said for the "first time", that:
(i) all the assets in the Trust were paraphernal of G; and
(ii) the property was settled into the Trust without her informed consent when she was suffering from a serious stroke and incapable of agreement.
The Trustee observed:
"These allegations address to some extent the issues of particularity raised by the Deputy Bailiff in his 28 June 2023 judgment, and so to that extent the Trustee recognised that it is now 'on notice' of these allegations and that [C] (on behalf of the estate) states that she intends to pursue them imminently [she is one of the two co-executors]. The difficulty for the Trustee, however, is and was that:
(i) It is not aware of the (indeed, any) evidence which is said to support these allegations; and
(ii) does not have time to conduct enquiries, given the Court-imposed deadline for the Decision and the failure of [C], [D] and [E] to state these matters until two days before that deadline."
The Trustee went on to say that given that it was unaware of the evidence to support the allegations and that no proceedings were yet on foot in respect of them, the Trustee was "not in a position to give weight to these allegations for the purpose of considering its Decision. However in the circumstances the Trustee intends to make an application for (amongst other matters) leave to distribute as envisaged in Lewin..."
(h) The proportion of the request relative to the size of the Trust fund. The amount requested was a "relatively small" proportion of the Trust fund as a whole. The Trustee said it had given this factor "considerable weight".
20. Although various criticisms were made of the Trustee's decision and the weight given to the various factors, in our judgment the Trustee acted reasonably in taking into account the matters which it did, including giving the weight which it accorded to the factors that it had regard to.
21. In concluding its letter, the Trustee indicated that it had been notified of an intention to pursue an adverse claim to the Trust at the "eleventh hour" but had not "been provided with any information showing that the claim is founded on firm evidence". Shortly after the Trustee issued its summons, in early December 2023, a date was fixed for the hearing of the same.
22. In the period between the issue of the summons and the hearing, there was an intimation of an application to amend C's Points of Claim to challenge the validity of ("F") letter requesting that B be added as a beneficiary. However, no summons to amend had been issued, let alone a date fix for the hearing of the same when the Court sat on 19 March 2024.
23. At the hearing in November, the Trustee referred to a letter dated 6 April 2017, when the Settlor wrote a letter asking the Trustee to add B as a beneficiary. It is said and accepted that that letter was not disclosed until the hearing in November. Counsel for the Trustee said (page 22 of the transcript):
"Sir, one may argue that, if a finding of fact is made that at the time of the letter from [F] asking that she be appointed was executed when he lacked capacity and when he was acting under the undue influence of [B], those would both have been relevant considerations which the Trustee ought to have taken into account when making the decision to exercise its power to add her as a beneficiary."
24. Accordingly, the Trustee made it clear that the previously undisclosed letter of 6 April 2017 was a matter which the Trustee took into account when making the decision which it did to add B as a beneficiary. Indeed, any other proposition would have been difficult to maintain. Nonetheless, the position of C, according to her counsel, was that they "reviewed" the Letter of Request which they received on 3 November 2023 and sent an email to the Trustee over a month later at 6pm on 7 December 2023, saying that they had reviewed the Letter of Request, making it clear that they were not criticising the Trustee for disclosure of the document and asking for confirmation whether this was a document the Trustee took into consideration when deciding whether to add B as a beneficiary. The following morning at 9am, counsel for the Trustee confirmed that "As discussed at the hearing on 3 November [and in the Court's view, recorded on the transcript] the Trustee took this document into consideration within its decision-making process to add [B] as a beneficiary".
25. Notwithstanding the period of delay between early November and early December to which we have just referred, it was over a month before counsel for C produced draft amended Points of Claim on 18 January 2024 challenging the appointment of B as a beneficiary. Counsel for C rightly described the amendments as minor as they simply involve amending one sub-paragraph of the Points of Claim. There was no agreement in correspondence as to the basis upon which such amendments should be allowed and C has failed to issue a summons seeking leave of the Court to make such an amendment.
26. Nonetheless, there is now a draft Amended Points of Claim in existence which challenges the appointment of B as a beneficiary.
27. Secondly and perhaps more significantly, the day before the hearing on 19 March, C sent to the parties a draft Order of Justice and has now sought leave to serve those proceedings on the parties outside the jurisdiction.
28. It is not necessary for the purpose of this judgment to summarise the Order of Justice. It is twenty-three pages in length and detailed. It has plainly been in the course of preparation for some time and it is a matter of regret that a draft Order of Justice was not supplied to the parties earlier as the Trustee in particular would have had the opportunity to take instructions upon it. As it is, counsel for the Trustee was entirely without instructions at the hearing (the Trustee is in Country C) owing to the late appearance of this pleading.
29. It is said that the draft Order of Justice lays claim to the whole of the Trust fund and pleads that all or virtually all of the assets placed on trust were inherited by G.
30. It is pleaded at paragraph 83 that in 2009 G suffered a stroke and at paragraph 84 that this circumstance in combination with rapid progression of her Alzheimer's disease, her ability to talk or make independent decisions was "seriously impaired". The Trust was established after this time in November 2010 by the Settlor. At paragraph 113 it is pleaded that G had the personal and familial wealth "to explain the value of the Trust fund".
31. Paragraph 120 avers that following her stroke G lacked the capacity to consent and did not consent to any dispositions of the paraphernal assets. Following the stroke (paragraph 121), it is said that in breach of trust various companies and / or the Settlor misapplied the Trust funds by purporting to transfer the paraphernal assets into Trust. It is averred that the Trustee holds all property derived from the paraphernal assets and 50% of any conjugal assets jointly owned with the Settlor for the benefit of G's estate absolutely. The joint plaintiffs are C and J and the proposed Defendants are the Trustee and a Trustee owned company.
32. Counsel for the Trustee could only observe that the Trustee's position in respect of its summons may change once it had the opportunity to take instructions.
33. One option in these circumstances was for the matter to be adjourned for this to occur and for (as argued by counsel for C) formal notice of the Trustee's summons to be given both to J as well as C. We will return to this latter point.
34. But the Court, having regard to the contents of the Order of Justice and the costs incurred of and incidental to this summons, felt that an adjournment was inappropriate. The parties provided their estimated costs figures, and the costs of and incidental to this summons totalled approximately £250,000.
35. Counsel for B argued that the Court should grant the Trustee's application and give leave to distribute the sum sought. The joint administrators could have applied to intervene in these proceedings and had not done so. It was argued that the Order of Justice had not been preceded by a letter for action and the Court should "draw a negative inference" from the late issue of these proceedings. Various observations were made in relation to the draft Order of Justice, including that it did not appear to be alleged that all the Trust assets were subject to the paraphernal claim and the claim in part was expressly limited to 50% of the marital assets; that the Trustee may have strong arguments in relation to prescription; the Article 9 "firewall" legislation and the joint administrators' delay since the death of G in issuing the proceedings. Furthermore, the affidavit sworn in these proceedings by C, which purported to particularise assets attributable to B, was out of date, deficient and the Court should play no reliance on it. B was not required to file evidence in relation to her needs in support of this application, but she was nonetheless prepared to file an affidavit to be seen by the Court and the Trustee only (bearing in mind her concerns as to C's interests in identifying and tracing her assets) if that was thought to be appropriate.
36. As to the status of B as a beneficiary, Advocate Alexander noted that the case had been considered today on the basis that his client was a beneficiary, that he objected to the amendment (although we note that his position in correspondence may have been different), and that C and the other Respondents had known from the outset the circumstances in which B was added as a beneficiary in 2017. He said it was obvious that B would have been appointed, having regard to requests from the Settlor.
37. Counsel for C said that the Order of Justice was a consequence of a "huge evidential gathering exercise" and that the supporting documents had been obtained in the ("Country D, Country B, Country E; that the pleading had been drafted with the assistance of English leading counsel and could not be finalised until the two personal representatives of G came to Jersey to attend upon the Probate Registrar on 13 March 2024. He conceded that they had been in the possession of a draft Order of Justice for some time. In the Court's view there was no reason for not providing the draft Order of Justice to the Trustee substantially in advance of the hearing. Counsel for C accepted that the Trustee was an innocent recipient of these funds and not a party to a fraud. Nonetheless, it was said the Court and the Trustee were firmly on notice of the nature of the claim mounted by C now owing to the draft Order of Justice.
38. As to the status of B as a beneficiary and her means, counsel for C said that he was content for B to make disclosure to the Court and Trustee only of her means by way of affidavit. He argued that it was not being suggested that B could not continue to participate in these proceedings without funding from the Trust, just that she was finding it difficult to do so.
39. We have dealt already with the late (in our view) application to challenge B's status as a beneficiary by way of amendment of the Points of Claim.
40. The parties were not agreed as to the appropriate test that the Court should apply when considering the Trustee's summons.
41. Counsel for B argued that this was a Public Trustee v Cooper type application for approval of a decision made by a trustee, or at least to be considered on that basis. He said that this was in essence a second attempt by the Trustee to surrender its discretion, disguised as the seeking of permission to make a distribution. His position was that the Trustee should get on with making the distribution and had not needed and did not need now the Court's approval or blessing to make a decision. Reliance was placed upon the decision of the Gibraltar Supreme Court in Fiduciary Trust Limited v Summit Services Limited [2018] Gib LR 187. In that case the claimants were trustees of a trust settled by the relations of the president of Syria. The settlor was also a protector and a beneficiary, together with other members of his family.
42. Serious allegations had been made against the settlor, but he had never been formally accused, charged or convicted of any criminal offence in relation to those matters. There were proceedings in France and Spain regarding the way in which it was said the settlor had acquired his wealth, including pleas of corruption, tax evasion and money laundering. The family assets in France and Spain have been restrained, but no such order had been issued by the Gibraltar Courts. The settlor and the family, including the adult beneficiaries, wanted to sell a particular trust asset. The trustee claimants sought the Court's approval of, inter alia, the sale of the assets in question and the making of distributions to the beneficiaries of the trust, notwithstanding the investigations underway in France and Spain concerning the settlor.
43. The Court appeared to have approached its decision on a Public Trustee v Cooper basis, holding that the role of the Court in such cases was that once it appeared that the proposed exercise was within the limits of the trustee's power, the Court was concerned with the limits of rationality and honesty and would not withhold approval merely because it would not itself have exercised the power in the way proposed. The Court would act with caution because the result of approval was that the beneficiaries would be unable thereafter to complain about the exercise being a breach of trust. The Court approved the sale of the trust assets, accepting that it was a momentous decision, and also approved the making of the distributions to the beneficiaries, notwithstanding the investigations underway in other countries. The Court accepted that the trust assets could not constitute criminal property for the purposes of the relevant Gibraltar legislation unless they constituted criminal property at the time of their settlement into trust. The issue was not whether the settlor was guilty of the allegations made in France and Spain, but whether the assets when they were settled represented the proceeds of crime, and the Court was satisfied that the trustee's belief that the provenance of the funds were gifts from the King of Saudi Arabia and not the proceeds of criminal conduct was considered reasonable in the circumstances.
44. Giving the judgment of the Court, Dudley CJ expressly referred to the decision of Walker J in Public Trustee v Cooper [2001] WTLR 922 and said that this case fell into the second category of cases, namely "where the issue is whether the proposed course of action is a proper exercise of the trustees' powers where there is no real doubt as to the nature of the trustees' powers and the trustees have decided how they want to exercise them but, because the decision is particularly momentous, the trustees wish to obtain the blessing of the Court for the action on which they resolved and which is within their powers".
45. Reference was made to a passage in Lewin at paragraph 27-079 and 27-080, the former confirming that the Court should act with caution "because the result of giving approval is that the beneficiaries will be unable thereafter to complain if the exercise is a breach of trust".
46. Such applications are of course very familiar to the Courts of Jersey, following the adoption of Public Trustee v Cooper by the Royal Court in the S Settlement in July 2001.
47. However, counsel for the Trustee and counsel for C said that the approach advocated for by counsel for B was not appropriate in the circumstances of this case and commended the approach set out in Lewin on Trusts (20th edition) at paragraph 24-027, which considered distributions notwithstanding third party claims. At 24-028 the authors of Lewin say:
"If a claimant issues proceedings to enforce an adverse claim to the trust property or any part of it, no distribution can safely take place until the proceedings are disposed of in some way. Trustees may alternatively be faced with an adverse claim for which the claimant has issued no proceedings and appears to have no immediate intention of doing so, though otherwise a distribution would be due; or they may simply learn of circumstances suggesting that a claim may be possible. In such cases, the trustees will be well advised to seek the directions of the Court unless they are able to make satisfactory arrangements for their own protection with the beneficiaries."
48. At 24-029 reference was made to the well-known judgment of Lord Romer in Guardian Trust and Executors Company of New Zealand Limited v Public Trustee of New Zealand [1942] AC 115 at 127, where his Lordship said:
"...if a trustee or other person in a fiduciary capacity has received notice that a fund in his possession is, or may be, claimed by A, he will be liable to A if he deals with the fund in disregard of that notice should the claim subsequently prove to be well founded."
49. The statement of Lord Romer extends to both trustees and others who hold a fund in a fiduciary capacity. Lewin observes that the principle appears to derive from the rule that a person holding property with notice that another person has a beneficial interest in it will be liable if he applies the property in a manner inconsistent with that interest and is independent of principles of constructive trusteeship, dishonest assistance and / or knowing receipt. However, simple assertion of a third-party claim will not necessarily prevent a distribution as noted by Lewin at 24-031 under the title "Distribution not prevented by insubstantial claims".
50. It is not necessary for the purposes of this application to refer to the authorities discussed by Lewin in this sub-paragraph of the text, but the upshot is that the position is not free from doubt. The Guardian Trust principle only applies to reasonably arguable claims and not ones that are specious and which have no arguable foundation. As to the role of the Court in this situation, Lewin says at 24-032:
"If the claim is being pressed any distribution will generally have to await the resolution of the claim. If the claimant is not pressing his claim, or if no claim has been made but the trustees are aware of circumstances which may give rise to a claim, the case is more difficult. Because trustees run the risk of personal liability under the Guardian Trust principle if they distribute with notice of a claim to the trust assets, they may therefore apply to the Court."
51. One application that the Trustee may make in these circumstances is an application for leave to distribute - see 24-033(3). Lewin notes that a trustee may apply for leave to distribute, notwithstanding the claim or possible claim and that it is the practice of the Court not to generally permit a trustee to distribute without notice to the claimant. In our view, in the context of this case, that condition was satisfied by the facts of C's participation in these proceedings and her status as a party to the paraphernal assets claim. Lewin continues:
"If the claimant responds by issuing proceedings, the validity of the claim will be decided in those proceedings....The Court nonetheless has jurisdiction to permit or direct a trustee to distribute notwithstanding the existence of claims or potential claims from third parties. Suitable cases in which the Court may order a distribution are where the identity of a potential claimant is unknown or where the possibility of a claimant appears to be remote or speculative, not founded on firm evidence."
52. In our view there is, as a matter of principle, a difference between an application under Public Trustee v Cooper for a blessing, and an application for leave to distribute despite third party claims to the trust assets. The former is concerned with the relations between a trustee and its beneficiaries. It is designed to protect the trustee against a complaint by a beneficiary after it has exercised a power where the exercise may be in breach of duty. The trustee enjoys protection from such claims as a consequence of the Court's prior approval. The burden that a trustee needs to discharge on such an application is not necessarily always a high one as there may be on any particular set of facts a range of reasonable decisions available to a trustee and the Court will not withhold its approval so long as the conditions established by case law are met. An application such as this, i.e. to give the trustee leave to distribute notwithstanding a third-party claim, is different. The third party to the trust should not be prejudiced without being given an opportunity to object. In this case, objections have been made and now we are presented with a detailed draft pleading by the third party in question. The role of the Court is to see whether the claim has merit. The Court is not determining whether or not a trustee has acted reasonably and in good faith in making the application. The Court itself needs to consider whether the claim can be safely disregarded by the trustee on the footing that it is unarguable or specious.
53. The Gibraltar case was unusual as it was in part a straightforward application of Public Trustee v Cooper principles - can the trustee sell the assets? - and in part it was not - can the trustee distribute even though on notice of potential third-party claims? In any event, we were satisfied that the right approach was that set out in Lewin, and the Court needed to determine whether or not the Trustee could safely disregard the claims now asserted. Certainly prior to presentation of the Draft Order of Justice and the draft Amendment to the Points of Claim, the Court may well have given the Trustee leave to distribute in circumstances where there was no challenge to B's beneficial status under the Trust, the paraphernal claim as contained in the Points of Claim was inarticulate in several significant respects and had been struck out, and notwithstanding promises of action had not been renewed by separate proceedings which articulated a claim to the entirety of the Trust fund. The position has now changed and without analysing the contents of the Draft Order of Justice (brief reference to it has been made above), it is clear that the Court cannot now determine that the claim advanced by G's estate has no arguable foundation.
54. We tend to agree with counsel for C's observation that on these applications the Court has a limited role and must decide for itself if the claim in advance is remote or speculative. This we have done.
55. Accordingly, we made the following observations and orders at the end of the hearing on 19 March:
1) The Trustee was acting reasonably in issuing the summons seeking leave to make a distribution of one million pounds to the First Respondent.
2) When the summons was issued on the 6 December 2023 there was no impediment to the Trustee making that payment to the First Respondent, either in the exercise of its own discretion or with the leave and or approval of the Court.
3) The filing of a draft Order of Justice yesterday by the Executors of the estate of G laying claim to the whole of the Trust Fund and the draft amended Particulars of Claim of the Second Respondent challenging the First Respondent's appointment as a beneficiary in 2017 (the summons to amend has not yet been filed) are material changes in circumstance which the Trustee could not have taken into account when it made its decision on the 24 November 2023 and subsequently issued its summons on 6 December 2023, and collectively mean that the Court cannot and does not grant the relief sought in the Trustee's summons.
4) Had the Second Respondent amended her draft Particulars of Claim between 3 November and 6 December 2023 in the way she currently plans to do or sought leave to do the same and/or provided a draft of her Order of Justice before or shortly after the summons was issued, the hearing today would, in our judgment, not have taken place and the Court is minded to order that the Second Respondent pay the costs thrown away including the costs of the Trustee and the First Respondent, but we will allow the parties to make written submissions on this issue after the Court's judgment is delivered in due course.
Authorities
Representation of BOS Trustees Limited [2023] JRC 107.
Representation of BOS Trustees Limited [2023] JRC 242.
Lewin on Trusts (20th edition).
Public Trustee v Cooper [2001] WTLR 922.
Fiduciary Trust Limited v Summit Services Limited [2018] Gib LR 187.
Guardian Trust and Executors Company of New Zealand Limited v Public Trustee of New Zealand [1942] AC 115.