On occasion, trustees can find themselves in a situation where they are considering taking a decision in respect of a trust in circumstances where there are potentially significant risks associated with that decision.
Jersey-based trustees, or foreign trustees of Jersey law trusts who find themselves in such a situation, are able to apply for the Royal Court's blessing under Article 51 of the Trusts (Jersey) Law 1984. If successful, this application affords protection to the trustee in making a decision which they consider to be a particularly momentous decision in the life of the trust.
5 things to know about blessing applications in Jersey
A momentous decision is one of real importance to the trust, for example the removal of a beneficiary, the disclosure of trust documents, the sale or gift of a significant trust asset or a substantial restructuring of the trust and/or its assets.
The trustee must consider all relevant factors in coming to their decision, and no irrelevant factors. The trustee also has a duty of full and frank disclosure to the Royal Court, and must show that it is acting in good faith in taking its decision.
It is not only a trustee who can make an application to the Royal Court under Article 51. These types of applications can also be made by beneficiaries or the Attorney General.
This is not considered to be a "hostile" application, and is distinct from typical litigation in that sense. It is not therefore the right forum for resolving disputes between or against trustees.
These hearings are ordinarly heard in private, however, judgments may still be published in full but in an anonymised form.
5 things to do about blessing applications in Jersey
The trustee must ensure they have considered the issues carefully. The decision-making process of the trustee will be critical, and should include detailed minutes of the trustee's decision.
Blessing applications may not be the only solution. A trustee must consider what other solutions may be available to them, and only make an application in the right circumstances.
The quality of evidence in a blessing application is key. A trustee should expect to provide the Court with minutes, any relevant expert evidence, copies of relevant legal advice and affidavit evidence from the trustee as required.
The Court will want assurance that the trustee has taken account of the views of the beneficiaries, who should be given a reasonable amount of time to respond. Beneficiaries should be encouraged by the trustee to seek their own legal advice if they wish.
While the Court process for blessing applications is intended to be quick and accessible, it is important to note that some applications will require greater legal expertise and that legal advice is always recommended.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.