B and C v Virtue Trustees (Switzerland) AG and Ors re The C Trust [2018] JCA 219 (29 November 2018)

B and C v Virtue Trustees (Switzerland) AG and Ors re The C Trust [2018] JCA 219 (29 November 2018)

The Settlement failed to reflect the true intention of A and Virtue Jersey due to an unintended consequence of naming D as Protector, which limited the power to add beneficiaries. Convincing evidence established that neither A nor Virtue Jersey intended to exclude D or her issue from benefit. Rectification is justified but should be limited to removing D from the definition of 'Excluded Person'.

Citation
[2018] JCA 219
Parties
Appellant: B; Appellant: C; Respondent: Virtue Trustees (Switzerland) AG; Respondent: Vantage Capital Management AG; Respondent: E; Respondent: Her Majesty's Attorney General; Respondent: Advocate Damian Evans (as Guardian ad litem for the minor beneficiaries descending from B and C); Respondent: Advocate Craig Swart (as Guardian ad litem for the minor beneficiaries descending from E)
Jurisdiction
Jersey
Judgment Date
29 November 2018
Procedural Posture
Appeal / Judgment
Outcome
appeal dismissed with modification
Legal Topics
Rectification of Voluntary Settlements, Mistake in Trust Instruments, Beneficiary Exclusion, Discretionary Trusts
Trusts Equity Rectification of Voluntary Settlements Mistake in Trust Instruments Beneficiary Exclusion Discretionary Trusts

Case Brief

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Parties

B

Appellant

C

Appellant

Virtue Trustees (Switzerland) AG

Respondent

Vantage Capital Management AG

Respondent

E

Respondent

Her Majesty's Attorney General

Respondent

Advocate Damian Evans (as Guardian ad litem for the minor beneficiaries descending from B and C)

Respondent

Advocate Craig Swart (as Guardian ad litem for the minor beneficiaries descending from E)

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the Settlement failed to give effect to the settlor's intention due to a mistake
  2. 2 Whether rectification should be granted to amend the definition of 'Excluded Person'
  3. 3 Whether the appointment of D as Protector unintentionally excluded her issue from benefit

Ratio Decidendi

The Settlement failed to reflect the true intention of A and Virtue Jersey due to an unintended consequence of naming D as Protector, which limited the power to add beneficiaries. Convincing evidence established that neither A nor Virtue Jersey intended to exclude D or her issue from benefit. Rectification is justified but should be limited to removing D from the definition of 'Excluded Person'.

Court Disposition

appeal dismissed with modification

Orders

  • Rectification of the Settlement is granted, limited to removing D from the definition of 'Excluded Person'.
  • Appeal dismissed subject to the modification of the rectification order.