Jersey
| Jurisdiction | United Kingdom |
| Pages | 457-483 |
| Author | Nigel Sanders |
27
JERSEY
Nigel Sanders
A. Jurisdiction 27.01
Hague Convention on the Law Applicable
to Trusts and on eir Recognition 27.02
Conict of Law Rules 27.03
Additional Conventions 27.04
B. Re cognition and Enforcement of
Foreign Judgments and Orders 27.05
Enforcement of Judgments 27.05
Statutory Reciprocal Enforcement
Provisions 27.09
Common Law Principles on Enforcement 27.11
Enforcement of Non- money Judgments 27.12
Letters of Request 27.14
Mutual Legal Assistance Treaties 27.16
C. Reserved Powers 27.17
Protectors 27.17
Statutory Reserved Powers 27.19
Donner et Retenir ne Vaut (‘to Give
and Retain is Worthless’) 27.21
Sham 27.22
Formal Sham 27.23
Classic Sham 27.25
D. Asset Protection and Insolvency 27.27
Fraudulent Dispositions Legislation 27.27
Co- operation in Insolvency Matters 27.32
E. Removal and Retirement of
Trustees and Protectors 27.35
Court’s Powers to Remove 27.35
Voluntary Retirement and Statutory
Powers of Retirement 27.36
Indemnities 27.37
F. Rights to Information 27.39
Condentiality Statutes 27.39
Statutory Provisions in Relation to
Rights to Information 27.40
Provisions in the Deed 27.44
Protectors’ Rights to Information 27.45
G. Guidance to Trustees, Protectors, or
Enforcers 27.46
Statutory Provisions and Administrative
Actions:Art 51 27.46
H. Involvement of Charitable Interests 27.50
Charity Legislation 27.50
Trusts Law 27.51
Position of the Attorney General 27.53
I. Alternative Dispute Resolution 27.54
J. Procedural Issues 27.57
Court Structure 27.57
e Bar 27.59
Representation and Capacity 27.60
Appea ls 27.64
K. Costs 27.70
Hostile Litigation 27.71
Directions Applications 27.76
L. Cases of Note 27.78
M. Special Legislation 27.79
Distinctions between Local Law
and English Law 27.79
Non- charitable Purpose Trusts 27.80
Foundations 27.81
Private Trust Companies 27.87
Tax Information Exchange Laws 27.89
Local Equivalent to Variation of Trusts
Act 1958 27.94
Local Equivalent of Section 57 Trustee
Act 1925 27.96
A. Jurisdiction
e key statutory provision in Jersey is the Trusts (Jersey) Law 1984 (as amended) (the
‘Trusts Law 1984’). e Trusts Law 1984 does not codify the Jersey law of trusts, and ac-
cordingly decisions of the Royal Court and Court of Appeal continue to develop Jersey’s
customary (common law) in this area. Unless otherwise stated, references in this chapter to
‘Articles’ are to Articles of the Trusts Law 1984.
27.01
Nigel Sanders, Jersey In: International Trust Disputes. Second Edition. Edited by: Steven Kempster,
Morven McMillan, Alison Meek, Oxford University Press (2010). © Oxford University Press.
DOI: 10.1093/oso/9780198832737.003.0027
458 :
Hague Convention onthe Law Applicable toTrusts and
oneirRecognition
Jersey became a signatory on 1 March 1992.
Conict ofLawRules
e Jersey courts will typically follow English common law conicts of law principles, but
there are specic statutory provisions in the Trusts Law 1984 concerning conicts of law and
the jurisdiction of the Jersey court:
(a) Art 4 provides for the proper law of a trust by reference to express and implied terms
and the concept of ‘closest connection’.
(b) Art 5 provides that the Royal Court has jurisdiction where (a)the trust is a Jersey
trust; (b)a trustee of a foreign trust is resident in Jersey; (c)any trust property of a
foreign trust is situated in Jersey; or (d)administration of any trust property of a for-
eign trust is carried on in Jersey.
(c) Art 9 (which was revised to its current form in 2006 and has been variously
amended subsequently, particularly in 20121) contains specic provisions
establishing a conict of law regime relating to Jersey trusts, the essential elem-
ents of which are that questions concerning validity, interpretation, dispositions
of property to a trust, settlor capacity, administration of the trust wherever car-
ried out (including questions as to the powers, obligations, liabilities and rights
of trustees, and their appointment or removal) and the existence and extent of
powers (including variation or revocation of the trust and appointment), and the
validity of any exercise of such powers, are to be determined in accordance with
Jersey law to the exclusion of any rule of foreign law. Art 9(2A)2 contains certain
caveats which limit the eect of Art 9(1) on underlying issues subject to other
legal provisions. For example, Art 9(1) cannot have the eect of validating dis-
positions of property into trust which were not owned by the settlor and will not
prevent recognition of the law of the jurisdiction that is applicable to the question
of ownership. Similarly, the Article would not override the law of incorporation of
a company in determining the capacity of a corporation, for example to transfer
assets onto trust.3 Art 9(1) is also made subject to express provisions to the con-
trary in the terms of the trust or disposition.4
AdditionalConventions
Jersey is signatory to various conventions which may be of relevance in a trust dispute (par-
ticularly those arising out of matrimonial proceedings), though these are generally expressed
by way of local statute and the conventions themselves are rarely, if ever, cited:
1 Trusts (Amendment No 5)(Jersey) (Law) 2012 (‘Amendment No 5’).
2 Enacted in 2012 by Amendment No 5.
3 Amended by Art 3 of the Trusts (Amendment No 7)(Jersey) (Law) 2018 (Amendment No 7).
4 See Representation of Schroder Cayman Bank and Trust Co Ltd [2015] (2)JLR N2; [2015] JRC 125.
27.02
27.03
27.04
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