Re the H Trust

• Jurisdiction: Bermuda
• Judgment Date: 30 April 2019
• Date: 30 April 2019
• Docket Number: Civil Jurisdiction 2019 No 3
• Court: Supreme Court (Bermuda)

[2019] Bda LR 29

In The Supreme Court of Bermuda

Civil Jurisdiction 2019 No 3

In the Matter of the H Trust

Mr K Robinson for the Plaintiff

The following cases were referred to in the judgment:

Rawcliffe v Steele [1993–95] Manx LR 426

Von Knieriem v Bermuda Trust Co Ltd [1994] Bda LR 50

Re the F Trust [2015] Bda LR 116

GH v KL and Ors [2010] Bda LR 86

Hambro v Duke of Marlborough [1994] Ch 158

Protector of trust — Validity of appointment — Inherent jurisdiction of the Court

RULING of Hargun CJ

Introduction

1. This is an application by Butterfield Trust (Bermuda) Limited, as trustee of the H Trust (“the Trustee” and “the Trust” respectively) for the following orders:

First, a declaration that Mr P is not a Protector of the Trust on the ground that his purported nomination as successor Protector by one of the original Protectors acting unilaterally contravened the requirement within the Trust Deed, that this power of nomination be exercised by the original Protectors acting jointly.

Second, an order appointing Ms M and Ms G as Protectors of the Trust under the Court's inherent jurisdiction to appoint persons as protectors, where there is a vacancy which cannot be filled by the machinery created by the relevant trust instrument, in order to ensure the proper exercise of the fiduciary powers vested in the office of protector by the trust instrument.

Third, an order conferring on the Trustee the power to amend the Indenture of Settlement dated 15 January 1990 (“the Trust Deed”) pursuant to Section 47 of the Trustee Act 1975 (“the 1975 Act”) on the ground that the variations intended to be made are within the broad scope of Section 47 and are plainly expedient.

2. The factual background to these applications is taken from the two affidavits of Catherine Smith sworn on 13 December 2018 and 11 March 2019 respectively.

Validity of the appointment of Mr P as successor Protector

3. The Trust Deed makes the following provisions in relation to the appointment of original and successor Protectors:

“SECOND: TRUST PROTECTORS. The provisions regarding the appointment and retirement of the Protectors and successor Protectors and the powers of the Protectors are as follows:

2.01: DESIGNATION OF ORIGINAL AND SUCCESSOR PROTECTORS

The original and successor Protectors shall be those persons named in the Fourth Schedule hereto. Each of the original Protectors shall as such serve from the date of this Settlement until his death or withdrawal from office. The Protectors serving from time to time under this Settlement may designate any person to succeed them as Protectors in case of their death or withdrawal from the office of protector, and they shall have the power to revoke such designation and make a new designation so long as they are acting as Protector. The last person so designated as successor Protector (if any) shall qualify to serve as successor Protector only if none of the persons named in the Fourth Schedule hereto shall be willing and able to serve as Protector. If such a named successor shall be willing and able to serve, such person shall qualify to serve and commence service as Trust Protector upon the death or withdrawal of the previously named Trust Protector. Upon qualifying as a Protector, each successor shall have the same power to designate a further successor and to revoke any such further designation. Each such designation or revocation shall be made by written notice delivered to the Trustee. Any Protector may withdraw from office if there is then appointed a successor Protector who is willing and able to serve…”

4. The Fourth Schedule of the Trust Deed provides as follows:

“The Original Trust Protectors and the successive, successor Trust Protectors who shall serve pursuant to the terms of the above written Settlement are as follows:

Original Trust Protectors: Mr. F and Mr. W (to act jointly as one or, if one of them ceases to serve as Trust Protector, the remaining person to act alone)” (emphasis added).

5. Pursuant to a Designation of Successor Trust Protector dated 8 May 1997, Mr W purported to appoint Mr R as...