Jersey Unreported Judgments

2001/72

ROYAL COURT

(Samedi Division))

 

26th March, 2001

 

 

In the matter of the Westbury Settlement

 

And in the matter of the Trusts (Jersey) Law 1984, as amended

and of the Royal Court (Jersey) Rules, 1992, as amended.

 

The Representation of Standard Chartered Grindlays

Trust Corporation (Jersey) Limited, applying for

leave to rectify the Deed of Settlement  

 

Advocate K. Lawrence for the Representor.

Advocate J.P. Speck for the unascertained beneficiaries

Advocate S.J. Young for the 'Cousins'

 

 

JUDGMENT

 

 

THE COMMISSIONER:

 

1.        This matter arises from a Deed of Settlement made on 28^th September, 1994, between the Trustees, Michael Baron Pascoe and Deanne Mary Pascoe, and the Settlor, Brian Robert Westbury, The Westbury Settlement.

2.        The intended beneficiaries as set out in the Trust are the Settlor, his spouse, children, and remoter issues and their spouses, widows, widowers, the Settlor's siblings, parents, step-parents and cousins of the Settlor's spouse's mother. 

3.        This is a straightforward application to rectify an error in the Deed of Settlement which, if the rectification were not agreed by the Court would exclude those whom the Settlor wished to benefit.  That would clearly be a nonsense.

4.        There were a number of tests laid down by this Court, for allowing such a rectification. The most recent case to which our attention has been drawn is In re: The Representation of Détente Limited, (26^th November, 1998) Jersey Unreported. I notice that Mr Speck, who is appearing today for one of the parties, was in that very case.  On that occasion,  the Court reviewed an earlier case, on which I had sat:  In re: Moody "A" Settlement (1990) JLR.264. However, it is not very much in point because the question of avoiding tax does not arise here.    

5.        The tests which that Court laid down and which this Court has followed in the past, and no doubt will wish to follow in the future, are fourfold:  (1) There must be sufficient evidence of the error; (2) it must be established to the highest degree of civil probability that a genuine mistake has been made; (3) there must be full and frank disclosure; and (4) there should be no other remedy, that is to say no other practical remedy.  Finally I should add that in the Détente case the warning was that the longer it takes to come to the Court the greater the risk or the greater the burden that is on the Representor.

6.        Accordingly we are satisfied from the evidence adduced to us, and particularly as the other parties affected concur with the application:  (1)  that there is sufficient evidence for us to find that it was the intention of the Settlor to benefit a number of people; (2)  that that intention was not carried out due to an error, about the reason for which we can only speculate; (3) that the evidence adduced satisfies the highest probability test; (4) that there has been full and frank disclosure; and (5) that there is no other practical remedy.

7.        Under the circumstances we will make the Order sought by the Trustees, who are now different Trustees from those originally appointed, but that makes no difference; the principle remains the same. 

 

 Authorities

 

In re Moody Jersey "A" Settlement (1990) JLR 264.

 

In re: Representation of Détente Ltd (26^th November, 1998) Jersey Unreported.