The ProblemA Jersey law trust. A Jersey corporate trustee. Divorcingbeneficiaries, both of whom are resident in a foreign jurisdiction.What should you do? What shouldn't you do?i You will need to consider three matters:- Provision of information Submission to the jurisdiction of the foreign Court Enforcement of judgment in Jersey Provision Of Information Disclosure of trust documentation falls under the inherentjurisdiction of the Court to supervise the administration of thetrust.ii It is therefore advisable to seek a directionshearing in front of the Court for endorsement of any decision as tothe documents you intend to disclose and documents you intend towithhold. You should bear in mind the following:- A beneficiary will normally be entitled to see:- The trust deed Accounts of the trust, which may include accounts of underlyingcompanies Bank statements Portfolio valuations A trustee is entitled to withhold disclosure of documents thatreveal how they deliberate or how they exercise their discretion,unless the Court orders there is good reason to makedisclosure.iii This will normally include:- The Letter of Wishes Minutes of trustee meetings If there is any indication that a beneficiary or stranger tothe trust intends to use the information to attack the trust– for example by asserting the trust is a sham– disclosure of information may bewithheld.iv The Court will normally order the provision of the fullestinformation to assist the foreign Court in determining how todivide matrimonial assets.v In some circumstances the Court will order disclosure ofinformation which is normally confidential, for example an oldLetter of Wishes may already be in the possession of a spouse andit might be in the best interests of the trust to ensure theforeign Court has the most up to date version. Submission To The Jurisdiction It is advisable to seek directions from the Court to approve anydecision you reach whether to submit to the jurisdiction of theforeign Court. Ordinarily the Court will order the trustee not to submit tothe jurisdiction of the foreign Court.vi As a matter ofprivate international law, submission to the jurisdiction by thetrustee may make the judgment of the foreign Court automaticallyenforceable in Jersey. A trustee is therefore normally advised notto submit, so that it will remain a matter of discretion for thetrustee and the Jersey Court whether to give effect to the foreignjudgment. A failure to seek directions before submitting to thejurisdiction from the Court may...
Divorcing Beneficiaries - A Practical Guide For Trustees
|Author:||Miss Joanna Woods|
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