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	Jersey Unreported Judgments
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> 1998/112 - Chase Bank and Trust Company re Graystone Trust [1998] UR 112 (2 June 1998) URL: http://www.bailii.org/je/cases/UR/1998/112.html Cite as: [1998] UR 112

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ROYAL COURT

(Samedi Division)

2 June 1998

Before: FC Hamon Esq., Deputy Bailiff, and

Jurats Le Ruez and Bullen

In the matter of the Representation of Chase Bank and Trust Company (CI) Ltd ( the Trustees)

And in the matter of the Graystone Trust

Application by the Trustee to rectify the deed of settlement.

Advocate JP Speck for the Representor

Advocate JD Kelleher for the unborn beneficiaries

JUDGMENT

THE DEPUTY BAILIFF: This is an application to rectify a deed of settlement made on 5 December 1980, between Giles Leon Richard Desbrow, the Settlor, and Chase Bank CI Trust Company, the original trustees.

The Trust is known as the Graystone Trust and is established under the laws of this Island. The named beneficiaries are the widow of the settlor, the mother of the settlor, and the two children of the settlor, Alexandra and Mark, and the lawful issue, and lawful remoter issue of such children born during the Trust period.

The mother is now dead, but the settlor and his wife are very much alive, the settlor was in Court today. Counsel have accepted our suggestion that the wife has a potential interest in the trust, and Dr Kelleher now represents her contingent interest, as well as that of the minor children.

We have a long affidavit made by Mr Desbrow in New York on the 22 May, and an affidavit made by Philip Bisson in Jersey on the 1 June. In late 1980 Mr Desbrow then working for a bank in Malaysia found that as part of his employment he was to take up residence in the United States of America for some years. He decided to set up a trust in the calendar year prior to taking up residency in order to avoid US fiscal implications.

He met with an officer of the bank in Hong Kong, he took advice from Arthur Andersen to ensure, as was confirmed, that the potential trust contravened no laws in the United States or the United Kingdom. An officer of the bank was entrusted to the documentation but Mr Desbrow was infrequently in Hong Kong; he did however, at some time prior to signing the settlement, complete what was called a Personal Financial Planning Services Questionnaire, where he answered printed questions in his own handwriting.

It is perhaps significant, one might say ominously significant, that one of the questions asks: "Any experience in setting up trust or beneficiaries of a trust or settlor of a trust", Mr Desbrow there has written "No." But under the heading "Distribution" and under the sub-heading "Beneficiaries" he has written: "French wife, Evelyn Desbrow, British mother, Rosetta Desbrow, U.K. Resident. British/French daughter, Alexandra Desbrow, British/French son, Mark Desbrow. French brother- in -law, Robert Rau, resident of France".

When we look at the deed there is no mention of Robert Rau in the list of beneficiaries, and there is no power in the trust to add beneficiaries. Mr Desbrow signed the document in Hong Kong, he had no independent legal advice, he relied on Chases expertise. Later the trust was returned to Mr Desbrow from Jersey, where it had been signed by the trustees. There were apparently written amendments on it in the handwriting of Mr Bisson which inter alia purported to add the words of a new sub-paragraph quote: "At trustees nomination/charities". That does not assist the settlor, it merely explains why he filed the document having then given it more than a cursory inspection.

The original letter of wishes dated 5 December 1980, did not mention Mr Rau, three later letters did but to no effect as there is no power in the trustee to add beneficiaries.

The law that advises us of the matters that we need to consider is set out in some detail in Cansolt Trustees Limited and Others (17 May 1994) Jersey Unreported and in particular that judgment contains the detailed judgment of this court, at page 5, in In the Matter of DA Moody Jersey "A" Settlement (7 December 1987) Jersey Unreported (1990) JLR 264.

The court clearly has a discretionary power to order documents such as voluntary settlements to be rectified. The settlement was properly made but it does not accurately record the true intention of the maker. We have more than sufficient evidence of the error of intention; there is no disagreement from any of the existing beneficiaries; and perhaps significantly rectification has no fiscal implications whatsoever.

In the circumstances we order the rectification retrospectively to the date of the original execution.

Authorities

In re Cansolt Trustees, Ltd. (17 May 1994) Jersey Unreported

In the matter of D.A. Moody "A" Settlement ( 7 December 1987) Jersey Unreported (1990) JLR 264