Re the E Trust

• Jurisdiction: Bermuda
• Judgment Date: 23 April 2018
• Date: 23 April 2018
• Docket Number: Civil Jurisdiction 2018 No 105
• Court: Supreme Court (Bermuda)

[2018] Bda LR 48

In The Supreme Court of Bermuda

Civil Jurisdiction 2018 No 105

In the Matter of the E Trust

Mr B Adamson for the Trustees

The Following Cases Were Referred To In The Judgment:

Re BCD Trust (Confidentiality Order) [2015] Bda LR 108

Re the G Trusts [2017] Bda LR 124

Trust — Anonymisation — Confidentiality — Private application — Power of the Court to authorise transactions relating to trust property

RULING of Subair Williams AJ

Introduction

1. This matter came before the Court on an Ex Parte Originating Summons filed on 5 April 2018 (“the Originating Summons”) for an Order, inter alia, pursuant to section 47 of the Trustee Act 1975 empowering the Trustees of the E Trust (“the Trust”) to add a charitable foundation (“the Foundation”) as a beneficial member of the Discretionary Class.

2. Counsel for the Plaintiff Trustees, Mr Ben Adamson, also sought for this application to be heard privately in Chambers and for the Court file to be sealed by Order of the Court. Additionally, Counsel applied for an Order that all Rulings and any Judgment in these proceedings be anonymized for reporting purposes.

3. I granted these applications at the 20 April 2018 hearing, subject to a term staying the execution of my Order made under section 47 until Friday 1 June 2018 coupled with the condition that one of the existing beneficiaries (“RL”) is served with these proceedings within 7 days of the date of these written reasons. Apart from the Settlor of the Trust, RL is the only current beneficiary.

The Facts on the Evidence

4. The Trust was settled by deed made in 2003 and it currently holds assets in excess of $20,000,000.00. There are five Trustees, one of whom is also both the Settlor and primary Beneficiary (“the Settlor T/PB”). (Notably, the Settlor T/PB was present during the hearing of the applications before this Court.)

5. The affidavit evidence before the Court filed in support of the Originating Summons (“the affidavit”) was sworn by another one of the Trustees with whom all the other Trustees are agreed. In this Ruling I shall refer to that particular Trustee as the Deponent Trustee.

6. The Deponent Trustee exhibited a Deed of Trust dated 25 March 2003 (“the Deed of Trust”) in addition to five other Deeds of Appointment and Retirement of Trustees spanning a 14 year period between 2003 and 2017.

7. The beneficiaries of the Trust are described in the Deed of Trust at clause 1.6 as “the Discretionary Class”. The Discretionary Class consists of the Settlor T/PB, her now deceased husband and the RL.

8. The Deponent Trustee also produced the Settlor T/PB's Letters of Wishes dated 2 April 2003 which provides in material part:

“Dear Trustees,

THE E…TRUST

I refer to the Declaration of Trust dated the 25^th March, 2003 and known as the E…Trust.

As a Settlor it is my wish you exercise your discretion in so far as the (RL) is concerned as a beneficiary by making them a modest and anonymous distribution from time to time. At this time it is not envisaged that my Husband or I will require funds but this position may well alter.

As you are aware, on the death of the survivor of my Husband and I, you are obligated to appoint the Fund to the Trustees of the Foundation. …”

9. The obligation referred to by the Settlor T/PB to appoint the Fund to the Trustees of the Foundation arises out of the provision in clause 5.1 of the Deed of Trust which states:

“On the death of the survivor of the Settlor and her husband, the Trustees shall appoint the Trust Fund and the income of the Trust Fund to the...