Gh and Ij v Kl and Others

• Jurisdiction: Bermuda
• Judgment Date: 02 December 2010
• Date: 02 December 2010
• Docket Number: Civil Jurisdiction
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Civil Jurisdiction

BETWEEN:

GH and IJ

Plaintiffs

and

KL and others

Defendants

Mr J Elkinson and Mr B Adamson for the Plaintiffs

Mr C Rothwell for the Defendants

The following cases were referred to in the judgment:

Raikes v LygonWLR [1988] 1 WLR 281

Hambro v Duke of MarlboroughWLR [1994] 3 WLR 341

In re Craven's EstateELR [1937] 1 Ch 431

Chapman v ChapmanWLR [1953] 2 WLR 94

Abstract:

Will trusts - Power of court to authorise transactions

JUDGMENT of Ground, CJ

1. This application concerns the will trusts of a testator who had three children. The will establishes separate trusts of the residue for each of them and their issue. The application is made by the executors of the will, who, together with the first defendant, are also the trustees of the trusts established by the will. The remaining defendants are all the living beneficiaries.

2. By the application I am asked to exercise the jurisdiction conferred by section 47 of the Trustee Act 1975. That section provides:

"Power of court to authorise transactions relating to trust property

47 (1) Where any transaction affecting or concerning any property vested in trustees, is in the opinion of the court expedient, but the same cannot be effected by reason of the absence of any power for that purpose vested in the trustees by the instrument, if any, creating the trust, or by any provision of law, the court may by order confer upon the trustees, either generally or in any particular instance, the necessary power for the purpose, on such terms and subject to such provisions and conditions, if any, as the court may think fit and may direct in what manner any money authorised to be expended, and the costs of any transaction, are to be paid or borne as between capital and income."

3. That provision appears to be an amalgam of two English provisions, being section 57 of the Trustee Act 1925 and section 64 of the Settled Land Act 1925, one effect of which is to remove the limitation to administrative matters contained in the former. I have no doubt, and in any event it must be presumed, that this was deliberate on the part of the legislature.

4. In this case the trustees have various proposals in mind, being -

i. the addition of a successor professional trustee to replace a person who is unwilling to act; a power for members of the family to select a successor family trustee; various powers of appointment for successor investment and legal trustees, and of...