Representation re H and J Trusts [2016] JRC 237 (20 December 2016)

Representation re H and J Trusts [2016] JRC 237 (20 December 2016)

There was a genuine drafting mistake in the excluded persons clause; the clients were intended to be beneficiaries and not excluded. Rectification is granted to amend the clause. There was insufficient evidence that omission of a power of amendment was a mistake, so rectification is refused on that point.

Citation
[2016] JRC 237
Parties
Applicant: Representor (Trustee); Respondent: Adult Beneficiaries; Respondent: Unborn Beneficiaries
Jurisdiction
Jersey
Judgment Date
20 December 2016
Procedural Posture
Trust Rectification Application / Judgment on Application for Rectification and Directions
Outcome
Partially granted
Legal Topics
Rectification of Trust Deeds, Excluded Persons Clause, Power of Amendment, Beneficiary Rights
Trusts Equity Rectification of Trust Deeds Excluded Persons Clause Power of Amendment Beneficiary Rights

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Parties

Representor (Trustee)

Applicant

Adult Beneficiaries

Respondent

Unborn Beneficiaries

Respondent

Procedural Posture

Trust Rectification Application / Judgment on Application for Rectification and Directions

Legal Issues

  1. 1 Whether the trust deeds should be rectified to clarify the excluded persons clause
  2. 2 Whether the omission of a power of amendment in the trust deeds is a rectifiable mistake

Ratio Decidendi

There was a genuine drafting mistake in the excluded persons clause; the clients were intended to be beneficiaries and not excluded. Rectification is granted to amend the clause. There was insufficient evidence that omission of a power of amendment was a mistake, so rectification is refused on that point.

Court Disposition

Partially granted

Orders

  • Rectification granted to amend the excluded persons clause in the Fourth Schedule of each trust to refer to 'The Trustee or its Directors, Shareholders or Officers for the time being', with retrospective effect.
  • Rectification to add a power of amendment refused.