Re the GA, GB and GC Settlements

• Jurisdiction: Bermuda
• Judgment Date: 14 June 2019
• Date: 14 June 2019
• Docket Number: Civil Jurisdiction 2019 Nos 153, 154 and 203
• Court: Supreme Court (Bermuda)

[2019] Bda LR 42

In The Supreme Court of Bermuda

Civil Jurisdiction 2019 Nos 153, 154 and 203

In the matter of the GA Settlement

and in the matter of the GB Settlement

and in the matter of the GC Settlement

and in the matter of the Trustee Act 1975

and in the matter of Order 85 of the Rules of the Supreme Court

Mr D Brownbill QC and Mr K Robinson for the Trustees

Mr N Le Poidevin QC and Mrs F Rana-Fahy for the Protectors

The following cases were referred to in the judgment:

GH v KL [2010] Bda LR 86

Re ABC Trusts [2012] Bda LR 90

Re A Trust (Change of Governing Law) [2017] Bda LR 53

Re the G Trusts [2017] Bda LR 124

Re the H Trust [2019] Bda LR 29

Re the C Trust [2016] Bda LR 56

Application for order — Vary terms of settlement — Perpetuity rule

RULING of Hargun CJ

Introduction

1. By Originating Summonses issued in each of the above captioned proceedings, the Trustees of the Settlements, as the Plaintiffs, seek substantially the same relief in the following terms:

• i. An Order pursuant to section 47 of the Trustee Act 1975 that the Trustees may be given power to vary the Settlements by executing a deed of variation in the terms exhibited to the affidavits sworn on behalf of the Trustees; and

• ii. An Order pursuant to section 4 of the Perpetuities and Accumulations Act 2009 that neither (i) the rule against perpetuities; nor (ii) any other similar rule of law that may limit or restrict the time under which property may be held in or subject to any trust shall apply to the Settlement or to the property held thereunder.

Application for relief under section 47

2. The Trustees, supported by the Protectors, are concerned that a detailed review of the Settlements has identified numerous instances of Settlement provisions which are obscure, over-elaborate or unsuitable. Part of the difficulty lies in the fact that these particular Settlements were intended to reflect the provisions set out in the earlier foundation (and the sub-foundations) established in Lichtenstein by the Founder. The detailed points of concern are set out in the written advice of Mr Brownbill QC and Mr Le Poidevin QC and these points of concern include excessive beneficiary involvement in the administration of the trusts, the commingling of beneficiaries in some funds, the defective cross-accrual provisions, and the cumbersome protector consent procedure.

3. As a result of the review the Trustees, with the support of the Protectors, took the view that the Settlements needed substantial revision, under which the beneficiaries would retain all of the existing control powers at the level of the sub-foundations but would relinquish their direct powers at the trust level, whilst at the same time the...