British Virgin Islands: Can A BVI Trustee Use A Special Power Of Appointment To Amend A Trust?

At first instance in Blausten v IRC,² (Reginald) Goff J had to consider (amongst other things) the ambit of a very common kind of power given to trustees to appoint that the whole or any part or parts of the capital of a trust be held:

The power was exercised in that case by the trustees so as to appoint that the fund be held upon exactly the same (discretionary) trusts as existed immediately prior to the exercise of the power save that (amongst other things not of relevance) the definition of the specified class was altered so as to delete a reference to the settlor's wife and widow. Goff J ruled the appointment was 'not effective at all'. He appears to have been led to that conclusion by focusing on the net effect (and clear intention) of the appointment— which was, for fiscal reasons, to delete members of the specified class—but this, he held, 'there was no power to do'.

It will be observed immediately that the asserted lack of power assumes rather than proves what was in issue, namely, whether a wide power of appointment to appoint capital on trusts (including discretionary trusts) among one or more of a specified class contains within it the power to delete members of the specified class: the fact that there is not separate, express power to remove objects from the specified class does not conclude that question. For this reason alone, Goff J's decision on this point might, with respect to him, be thought questionable.

It might also (had it stood) have been damned as having been decided per incuriam in that the earlier decision of the Court of Appeal in Muir v IRC³ was not cited to the court despite being in point and to contrary effect. In that case it was held that a re-settlement of a trust fund upon trusts identical with the existing trusts but excluding a particular power in the trustees was within the ambit of a power to appoint:

it being made clear that the trustees might in so appointing:

Even bearing in mind that decisions on points of construction do not generally create precedents, the relevant clauses and material facts in both cases were so similar as to have required citation of the earlier case before Goff J and for Goff J to have either followed or distinguished it.

When Blausten reached the Court of Appeal, Buckley LJ (with whom Orr and Salmon LJJ agreed) differed from Goff J on the question of the construction of the power preferring the approach of the Court of Appeal in Muir. He said:

Goff J had instinctively approached the question of construction in a purposive way whereas the Court of Appeal, both in Muir and Blausten, approached it more literally and, in each case, easily found what was done to be within the four corners of the power. Since the powers in question are to be found in countless discretionary trusts, the decisions in Muir and Blausten are of assistance as to the likely construction of similar powers and have over the past 50 years given many trustees and their advisers comfort, if not the complete indemnity afforded by a court direction, that the common form special power of appointment to appoint capital on new trusts, including discretionary trusts, may be used (assuming the other conditions for a proper exercise of power are satisfied) to appoint on substantially identical discretionary trusts which differ only in a minor respect from the existing trusts.

That aspect of the decision is not, however, what has interested the leading practitioners' works on trusts even though it features prominently in the headnotes of both cases and was, quite evidently, part of the ratio decidendi of each. Both Underhill & Hayton⁴ and Lewin⁵ concentrate, rather, on those aspects of the decision which address the question of certainty of powers since the comments of Buckley LJ on that issue did not find favour with later judges at first instance: see Templeman J in Re Manisty's Settlement⁶ and Megarry V-C in Re Hay's Settlement Trusts.⁷ It is, therefore, in relation to the subsequent development of the law relating to powers that Blausten is generally discussed and, generally, denigrated. This has had the unfortunate consequence that the wholly uncontroversial and perfectly orthodox decision on construction has been somewhat buried.

That is not to say that it has not been acted on: on the contrary, trust practitioners in the offshore world in particular, including those Leading Counsel in Lincoln's Inn who are consulted by them, are entirely familiar with the use of powers to appoint on new trusts as mechanisms for effecting small amendments to either or both of the dispositive/distributive and the administrative and management provisions of a trust. It is so familiar and well established a practice that most would be hard pressed to cite authority for it. But, if it is necessary to do so, clear and consistent authority is to be found in the decisions of the English Court of Appeal in Muir and Blausten which, until very recently, had never been disapproved judicially on the point.

That position changed, albeit briefly, in late 2013 when Royal Fiduciary Group Limited as trustee of the New Huerto Trust, a British Virgin Islands (BVI) discretionary trust, sought an order from the BVI Commercial Judge confirming that it could use a power of appointment to execute a deed of appointment the principal and net effect of which would be to remove the settlor from one of the two classes of beneficiaries, there being no separate, express power to do so. Bannister J held that it could not.

He did so principally because he thought the reasoning of Buckley LJ on the construction point in Blausten 'obviously wrong' and he declined to follow it. He was unmoved by the assertion that it had been acted on in England by practitioners for 40 years since he had not been told that it had ever been acted on in the BVI and his decision would have no effect in England. He also relied, to some extent, on the fact that Blausten was not cited by leading practitioners' works as authority on the construction point.⁸

Bannister J also, however, distinguished the power conferred by the New Huerto Trust, as a matter of construction, from those under consideration in Muir and Blausten. The relevant clause of the New Huerto Trust provided:

Bannister J held that this did not empower the trustees to appoint on new discretionary trusts (which the powers in Muir and Blausten expressly did) but gave only 'the power to confer beneficial interests . . . ''in such shares and proportions . . . as the Trustees may from time to time appoint . . .''' (Bannister J's emphasis) and the appointment made did not create any beneficial interests in that sense.

The trustee's application was ex parte and made in the context of a divorce initiated by the settlor's wife, who was not a beneficiary. The trustee was, no doubt, looking for the indemnity of a court order declaring that it had power to execute the deed of appointment because of a perceived risk of attack by the wife on the validity of the deed and, perhaps, of criticism from the English Family Division. Contrariwise, Bannister J seemed motivated by an understandable reluctance, quite apart from his view of Blausten, to afford the trustee any comfort, let alone an indemnity, in the absence of argument from the party most inclined to argue invalidity (ie the wife) and he expressly left the trustee to decide whether to execute the deed and defend any decision to do so if attacked: the settlor, for fiscal and perhaps also divorce-related reasons, did not object to his exclusion and the other objects comprising the settlor's children and remoter issue had no reason to do so either (since they, through the exclusion of the settlor, stood to benefit in both the sense that, if the deed were valid, there would be fewer objects among whom the fund could be shared and the sense that no part of the fund could be considered a resource of the settlor in the English divorce), with the result that the wife was the only person who had any interest in challenging the validity of the deed.

The trustee did not find the position in which it was left as a result of Bannister J's ruling to be satisfactory and, unusually, appealed. The Court of Appeal of the Eastern Caribbean Supreme Court allowed the appeal and declared that the trustee did have power to execute the deed. The principal reason for doing so was that Muir and Blausten were, in its view, directly in point as regards the construction issue, had not been criticized on that issue in the standard textbooks and, though not strictly binding on Bannister J, should (as decisions of the English Court of Appeal) have been treated as persuasive by him on, and decisive of, the construction issue.

However, the Court of Appeal also regarded the matter as one of principle as much as authority in that it saw no reason why, if a trustee can validly appoint property among two or more objects while excluding one or more others, it could not, in advance of appointing any property to the objects of the trust, use the power of appointment to exclude one of them from benefiting under the trust: such appointment (ie merely excluding one or more objects) would result in an increase in the property interests available for distribution to the remaining objects in the sense that the excluded object would have no claim under the trust and thus no resource out of which to satisfy the wife's adverse claim in the English divorce proceedings, if successful.

It is greatly to be welcomed by BVI trust practitioners that the Court of Appeal has reinstated the persuasive authority of Muir and Blausten in the BVI and that it has confirmed, more generally, that the Commercial Judge in the BVI should follow decisions of such persuasive authority when in point. It does not, however, appear that the Court of Appeal dealt with Bannister J's distinction between the power in this case, on the one hand, and those in Muir and Blausten, on the other; if the distinction is wellfounded, the trustee's appeal should, notwithstanding the reinstatement of Muir and Blausten, have been dismissed and it is therefore necessary to look a little more closely at Bannister J's alternative ground of decision.

It is to be remembered that neither Bannister J nor the Court of Appeal had the benefit of adversarial argument but Bannister J nonetheless instinctively discerned that the power under the New Huerto Trust was read most naturally as, in effect, a power merely to select objects and determine shares of entitlement. He clearly thought that, if a purported appointment simply repeated the discretionary beneficial provisions which already obtained and effected no selection of objects and determination of shares (albeit de-selecting one of the objects), there was simply no appointment within the ambit, or meaning, of the clause. The remaining objects would not get anything which they did not have before (ie the right to be considered for an appointment from time to time) and certainly they would not get any share.

Trust lawyers might say that Bannister J's instinct was entirely sound and justified by reference to the rule against unauthorized delegation or, as the same point is sometimes put, the distinction between narrow and wide powers of appointment, the former not allowing the creation of discretionary trusts, the latter doing so.

The appointments in Muir and Blausten could not be said to have fallen foul of the rule against unauthorized delegation precisely because the terms of the power expressly authorized, in each case, an appointment which consisted of, or included, the conferring of further powers and discretions. The powers were, in other words, wide rather than narrow in the relevant sense. So very far, therefore, from being wrong (let alone obviously wrong), the decision in Blausten on the construction point was not just right but necessarily right: if T holds property under a trust instrument on trust for such members of a class and in such shares as it shall appoint and is, further, expressly given the power when making the appointment to appoint on new trusts containing such powers and discretions as it shall in its discretion appoint, T necessarily has the power to appoint that it holds the property (being a 100% share) on trust for all members of the class bar one on terms in all respects otherwise identical to the trusts powers and provisions of the trust instrument. The result follows from the meaning of the words used.

The power conferred by the New Huerto Trust, however, contained no express power to delegate the discretionary trusts on which the trust fund was held or, putting it in terms of the distinction between wide and narrow powers of appointment, did not allow for the creation of further discretionary trusts. Bannister J, it is respectfully submitted, was quite correct to construe the power as a mere power of selection of objects and determination of shares and the appointment proposed to be made by the trustee, which merely replicated the existing discretionary trusts for all members of the discretionary class bar one, did not amount to an exercise of the only available power. It would, as Bannister J correctly ruled, therefore be a nullity.

In so doing, Bannister J was following, whether consciously or not, the approach taken by Megarry V-C in Re Hay's Settlement Trusts.⁹ In that case, trustees held a fund:

The trustees purported by clause 2 of a deed of appointment to exercise the power in favour of themselves as trustees to pay the unappointed income of the fund:

Megarry V-C summarized the issue as being 'whether the settlement enabled the trustees to create such a trust . . . ' and, more fundamentally, 'whether the appointment has designated the ''persons'' to whom the appointment is made'. As a matter of principle, Sir Robert was minded to answer the latter question in the negative:

There is no such person to be found in clause 2 of the deed of appointment: instead, there is merely the mechanism whereby a person or persons may be ascertained from time to time by the exercise of the discretion given to the trustees. If that mechanism is operated, then persons may emerge who will be entitled: but they will emerge not by virtue of any exercise of the power in the settlement but by virtue of exercise of the discretion in the deed of appointment. That seems to be to be a plain case of delegation: the power in the settlement is not being exercised by appointing the persons who are to benefit but by creating a discretionary trust under which the discretionary trustees will from time to time select those who will benefit. True, the appointor under the settlement and the trustees of the discretionary trust are the same persons: but I do not think that this affects the matter. The power in the settlement is a power to appoint to persons and not a power to nominate those (whether the appointors or anyone else) who will select persons who are to benefit; . . . I can see nothing whatever in the power conferred by the settlement which even contemplates that an appointment should designate no appointees but instead should set up a discretionary trust under which the trustees could determine who should benefit.

Megarry V-C therefore held clause 2 of the deed of appointment to be void as being an excessive execution of the power. It is respectfully submitted that the power conferred on the trustee of the New Huerto Trust was in no material way distinguishable and that Bannister J was, will all due respect to the Court of Appeal, therefore correct to rule that the proposed deed of appointment would be a nullity. With the benefit of adversarial argument, the Court of Appeal may have come to the same conclusion. Since the only party capable of being adversely affected by the Court of Appeal's decision was not party to the proceedings, she will not of course be bound by it and will remain free to argue the point afresh should she wish to do so. The effect of the Court of Appeal's order is, therefore, merely to afford a complete indemnity to the trustee vis-a`-vis its beneficiaries and, possibly but not inevitably, to forestall any criticism from the English Family Division in the event that the trustee relied on the Court of Appeal's ruling and executed the proposed deed of appointment.

Beyond that, however, the principal effect of the trustee's ex parte application and its determination to pursue the matter on appeal is that trust practitioners in the BVI and, perhaps, elsewhere, will have cause to re-examine their historic and future practice as regards the use of powers of appointment for the purpose of amending discretionary trusts and ensuring, in future at least, that any power so used is one which, on its true construction, authorizes the creation of discretionary trusts or powers as needed. In cases of doubt, it is always appropriate for a trustee to seek the direction of the court but, it is as clear now in the BVI as it has been for some 50 years in England that a power which, on its true construction, does authorize the creation of discretionary trusts may be used, in effect, as a species of a power of amendment.

Footnotes

1. The judgment of Bannister J is dated 8 November 2013 in claim no BVIHC (Com) 112 of 2013; the judgment of the Court of Appeal is dated 26 October 2015 in appeal no. BVIHCMAP2013/002; neither judgment is yet reported but both are available on the website of the Eastern Caribbean Supreme Court at (https://www.eccourts.org/royal-fiduciary-group-ltd/) and (1. The judgment of Bannister J is dated 8 November 2013 in claim no BVIHC (Com) 112 of 2013; the judgment of the Court of Appeal is dated 26 October 2015 in appeal no. BVIHCMAP2013/002; neither judgment is yet reported but both are available on the website of the Eastern Caribbean Supreme Court at (https://www.eccourts.org/royal-fiduciary-group-ltd/) and (https://www.eccourts.org/royal-fiduciary-group-limited-the-new-huerto-trust/) accessed 23 March 2016 respectively. The leading judgment in the Court of Appeal was delivered by Michel JA with Pereira CJ and Baptiste JA merely concurring.

2. [1972] Ch 256, Goff J and CA.

3. [1966] 1 WLR 1269, CA; [1966] 3 All ER 38.

4. Underhill and Hayton, The Law of Trusts and Trustees (18th edn, LexisNexis Butterworths 2010), DJ Hayton, PB Matthew and CCJ Mitchell eds, at paragraphs 8.72, 8.79 and 8.213 (previous editions being to like effect).

5. L Tucker, N Le Poidevin, J Brightwell (eds), Lewin on Trusts (19th edn, Thomson, Sweet & Maxwell 2015) para 4-038 (the 18th edition, then current, being to like effect).

6. [1974] Ch 17.

7. [1982] 1 WLR 202.

8. This is certainly true of Underhill and Hayton and Lewin but the Court of Appeal correctly noted that para 544 of volume 98 of Halsbury's Laws of England (5th edn, LexisNexis 2013) Lord Mackay of Clashfern ed, cites both Muir and Blausten for the following proposition: 'The trust instrument may authorize a resettlement for the principal purpose of excluding a specific beneficiary from the class of objects.' The author of the title is the Hon Mr Justice David Hayton. The release date of the title was, however, 7 November 2013 i.e. only one day before Bannister J delivered his judgment.

9. ibid.

10. These brackets were added by Megarry V-C.

11. The instrument went on to prohibit any exercise in favour of the settlor, any husband of hers or any existing or former trustee.

This article was first published in the September 2016 edition of Trusts & Trustees: Volume 22, Issue 7. Please click here to view the publication's website. 

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.