The BVI courts have tackled a number of trust disputes over the last couple of years, addressing a number of important issues, some of which have not been the subject of previous decisions. These issues include:

Whether common form powers of appointment can be used to exclude beneficiaries. The extent of the trustee's duties on the delegation of investment management. Whether anti-Bartlett clauses are effective. The scope of indemnity and exoneration clauses. The interpretation of a trust deed with apparently contradictory beneficial provisions. This update contains on overview of the following cases:

The New Huerto Trust1 Appleby Corporate Services (BVI) Limited v Citco Trustees (BVI) Limited2 Equity Trustee Limited v Yang Hsueh Chi Serena & Others3 THE NEW HUERTO TRUST

Facts

This was an application by the Trustee for approval of a deed of appointment excluding the settlor as a beneficiary of the Trust. The deed also sought to release the Trustee's power of revocation and to give it unlimited power to vary the terms of the Trust in the future. The purpose of the exclusion was to prevent the trust assets being caught by a worldwide freezing order of the Family Division of the English High Court in divorce proceedings brought by the settlor's wife and presumably to prevent them being treated as a financial resource on the basis that he could no longer benefit from them.

The Trust was discretionary and the power of appointment was in the following terms:

"The Trustees stand possessed of the Trust Fund and the income thereof upon discretionary trusts for the benefit of the Beneficiaries or any one of more of them exclusive of the others in such shares and proportions and subject to such terms and limitations and with and subject to such provisions for maintenance, education or advancement or for accumulation of income during minority or for forfeiture in the event of bankruptcy or otherwise and such other conditions as the Trustees may from time [sic] appoint by Deed revocable or irrevocable executed before the Vesting Day".

There was no express power in the Trust Deed to add or remove anyone from the class of Beneficiaries, to vary or revoke any of the provisions of the Trust or to permit the Trustee to appoint the Trust Fund onto new discretionary trusts.

Decision

It was held that the Trustee could not exercise its power of appointment to vary the terms of the Trust Deed as it wished: in particular, the power could not be exercised so as to exclude a beneficiary from the class of Beneficiaries. It could only be exercised in favour of certain defined objects so as to create beneficial interests in one or more of those objects. The proposed appointment was not a permitted exercise of the Trustee's power, as it did not appoint any property to, or confer any benefit on, any person.

In reaching his decision, Bannister J noted that he was not following the decisions of the English Court of Appeal in either Blausten v Inland Revenue Commissioners4 or Muir v IRC5 despite the fact that Blausten has been widely relied upon by English practitioners to support the proposition that a common form power of appointment could be used to exclude objects from a discretionary class without any appointment of beneficial interests.