Editors’ welcome

This edition has something of an offshore theme, with content covering Bermuda, the British Virgin Islands (BVI), the Cayman Islands and the Isle of Man, as well as a book review of Global Mobility of Ultra‑High‑Net‑Worth‑Individuals.

Over the past year, practitioners from every corner of the world have contributed to our international retrospective. The issues of the TQR featuring these reports therefore contain a fascinating exposition of the changes in trusts law across the jurisdictions spanned over the 30‑year lifetime of STEP.

The fifth and final part of this retrospective contains a detailed history of 30 years of Bermuda trusts law, prepared by Ashley Fife TEP. This covers legislative changes to the Trustee Act 1975, the Trusts (Special Provisions) Act 1989, the Trust (Regulation of Trust Business) Act 2001, the Trusts (Regulation of Trust Business) Exemption Order 2002 and the Perpetuities and Accumulations Act 2009, as well as important developments through case law, including Guardian v Bermuda Trust Company (privacy of proceedings), GIHL v KL & Ors (use of s.47 of the Trustee Act 1975 to vary beneficial interests) and Re F Trust and the A Settlement (statutory Hastings‑Bass).

Also in the retrospective, we learn about changes to trust law in India where, although there have been important judgments dealing with trusts in the past 30 years, the 1882 Trusts Act has only been amended once in that time. The Isle of Man, on the other hand, passed four key pieces of legislation in six years, these being the Trusts Act 1995, the Purpose Trust Act 1996, the Criminal Justice (Money Laundering Offences) Act 1998 and the Trustee Act 2001.

New Zealand and Singapore round out the retrospective. Singapore’s 2004 amendments to the Trustees Act 1967 provided for a statutory duty of care of the trustees, so clarifying the liability of the trustees and enabling greater public confidence in the trust industry. Further, these amendments heralded the introduction of a firewall provision that protects the validity and integrity of trusts set up in Singapore. New Zealand’s forward‑thinking developments culminate in the Trusts Act 2019 (becoming law in 2021) with a view to making the law of trusts more accessible, codifying the common‑law principles of access to documents and providing mechanisms to resolve trust‑related disputes.

Thank you to everyone who has contributed to the retrospectives over the past year.

Rory Carter TEP and Roberta Harvey’s article reviews the next instalment of the Pugachev story, looking at the judgment of Justice Adrian Jack in Mezhprom v Lenux, the English and Welsh case of House of Spring Gardens Ltd v Waite. Mezhprom involved the ever‑relevant issue of enforcement of foreign judgments in offshore jurisdictions, with the English and Welsh courts having ruled (in proceedings in which the trustee did not take part) that Pugachev exercised complete control over a New Zealand trust that held the shares in a BVI company and, in turn, a large country estate near Moscow. The English courts, however, were found not to have had jurisdiction over the trustee. The authors consider the concept of the privity of interest binding trustees in the BVI and the now potentially important issue of the risks faced by trustees in jurisdictions that do not have firewall provisions where they do not take part in litigation ongoing elsewhere to which they are a party.

In his article, Andrew Peedom TEP conducts a detailed review of the important recent Cayman Islands case decided by Justice Kawaley on undue influence and capacity in the context of a declaration of exclusion of beneficiaries by a father against the interests of his children and to the benefit of his wife. A stereotypically unhappy tale in which Kawaley J described the accusations levelled by both sides as ‘shockingly unkind’. In this case, the finding that the deceased had always intended to take care of all the relevant parties provided the foundation for a finding of undue influence, even though the case did not involve the sort of ‘overt, crude acts of domination’ that one might expect to see in an undue influence case.

In their article, John McArthur TEP and Sarah‑Jane Macdonald provide an analysis of the current state of Scots trust law, with an emphasis on the new Trusts (Scotland) Bill. As the Trusts (Scotland) Act 1921 approaches a long‑overdue overhaul, the question is whether the new Bill will be the silver bullet that Scottish practitioners have been waiting for.

Finally, we bring you Jane Ren TEP’s review of Global Mobility of Ultra‑High‑Net‑Worth Individuals, edited by Nicola Saccardo TEP. This is said to be a reliable resource for practitioners regarding the relocation requirements for 15 popular jurisdictions, from Canada to Monaco.