Recent Trust Cases Before the Bermuda Courts

Recent Trust Cases Before the Bermuda Courts STEP Bermuda 2013 13th Annual Conference Moderator: Keith Robinson, Appleby Panelists: Paul Smith, Conyers Dill & Pearman Andrew Martin, MJM Limited Thursday 28 February 2013

2012 – A Year in Review • Putting it right: remedying problems arising from defective trustee appointments (Francis Tregear QC, Trusts and Trustees, February 2013) • [Exclusive] Jurisdiction Clauses – In the Matter of A Trust [2012] SC (Bda) 72 Civ • Blessing of Momentous Decisions (Public Trustee v. Cooper [2001] W.T.L.R. 901) • Schmidt v. Rosewood – The Bermuda Sequel?

ABC Trusts • Application of section 47 Trustee Act - unique Bermuda provision • Enables variation of beneficial interests in trusts, without beneficiary consent • Used for:  Restructuring trusts  Family arrangements  Tax planning, particularly with US resident beneficiaries  New perpetuity period • Hybrid of two pieces of English legislation – s57 Trustee Act 1925 and s64 Settled Land Act 1925 • Expediency trigger

Confidentiality Orders • • • • •

Open Justice vs. Personal Privacy Constitutional Requirements Legitimate exceptions and limitations Tools available Practical Tips “Having regard to Bermuda’s status as an offshore trust domicile, this court is bound not just to be sympathetic to the privacy needs of those who establish trusts here, but also to the need to promote the development of Bermuda trust law as well.” Per Kawaley CJ in Guardian Limited v Bermuda Trust Company Limited