В статье рассматриваются два взаимосвязанных решения Королевского суда острова Джерси, касающиеся процесса о разводе и его влияния на траст по правилам Джерси. Оба судебных решения приняты в связи с судебным процессом о разводе в Гонконге. Во-первых, Королевский суд решил, что признание управителем юрисдикции суда Гонконга было основательным и разумным. Во-вторых, Королевский суд признал разумными и основательными решения управителя по разделу имущества супругов, в том числе, находящегося в доверительном управлении, и исключению супруги из числа фидуциариев траста. Таким образом, Королевский суд продемонстрировал, что он может осуществлять надзорную юрисдикцию, адаптируясь к меняющимся правовым (юридическим) и фактическим условиям, в том числе в отношениях между бенефициариями и управляющими трастов.
Introduction
Two linked Jersey Royal Court judgments have provided further insight into the court’s exercise of its supervisory jurisdiction over Jersey trusts in relation to trustees faced with overseas divorce proceedings concerning members of the beneficial class.
Both judgments relate to decisions made by the trustee of a Jersey trust in connection with divorce proceedings in Hong Kong. In the initial court application, the trustee sought directions as to whether it should submit to the Hong Kong court’s jurisdiction and take part in the divorce proceedings. In the second, the trustee sought the Royal Court’s blessing regarding its decisions to:
- distribute funds from the trust in order for the husband (the settlor and a beneficiary) to pay the sum ordered on the divorce; and
- exclude the wife as a beneficiary of the trust.
Having been joined to the Hong Kong divorce proceedings, the trustee sought directions from the Royal Court as to whether it should take part in the proceedings.(1) The trustee was in favour of submission for various reasons, including the following:
- The Hong Kong court could enforce its decision against trust assets in Hong Kong even if the trustee did not submit.
- The trust was administered in Hong Kong and key individuals could be subpoenaed to give evidence.
- The trustee wanted to appear in order to provide relevant arguments aimed to safeguard the interests of the other beneficiaries. In this context, the trustee believed that making submissions would outweigh merely providing information by way of its disclosure obligations.
- The trustee considered that there was little risk of a conflict of interest between its duty to obey the Hong Kong court and its duty to adhere to the trust instrument.
The Royal Court concluded that the trustee’s decision to submit to the Hong Kong court’s jurisdiction was reasonable.
Divorce proceedings and impact on trusts
The divorce proceedings were appealed to the Hong Kong Court of Final Appeal, where the wife was awarded 50% of the combined matrimonial assets of the parties, which included the assets of the trust. Following this judgment, the trustee made distributions out of the trust so that the husband could comply with the Hong Kong judgment and also decided to exclude the wife as a beneficiary of the trust. On the basis that its decisions were “momentous”, the trustee applied for the Royal Court’s blessing, which it received.(2)
Court’s role in approval applications
The legal test to be applied by the court when deciding whether to bless a “momentous” decision derives from the English case Public Trustee v Cooper(3). The court must be satisfied that, based on the facts, the following can be established:
- The trustee formed its opinion in good faith and took desirable and proper steps in the circumstances.
- Reasonable trustees, if properly instructed, could have arrived at the same decision.
- There was no actual or potential conflict of interest on the part of the trustee when making its decision.
In Otto Poon, the trustee’s application did not contend that it had acted in bad faith or that there was a conflict of interest. The court accordingly confined its determination to whether the second consideration could be answered affirmatively.
When deciding whether to bless a momentous decision, the court will not exercise its discretion unless the trustee has surrendered its discretion for valid reasons. Instead, it will make a declaration that the trustee’s proposed exercise of its power is lawful and reasonable. Therefore, the court must consider whether the trustee has the power to make the decision (even if the court might have balanced the factors differently and thus reached a different decision).
Notwithstanding various submissions made on behalf of the wife (who was convened to appear at the hearing), the court considered the trustee’s decisions to make the distribution and exclude the wife as a beneficiary to be reasonable and accordingly blessed them. The court accepted that the power to exclude a beneficiary is unusual – one which must be exercised carefully. However, in this case, the court concluded that it was appropriate to exclude the wife as a beneficiary, stating as follows:
“The wife has, in effect, received half the trust fund. She is aged 75 and will now have HK$770.5m plus certain other assets giving her a total of HK$832.5m in her own right. She therefore has ample financial resources to last her for the rest of her life and there is no need for her to remain as a beneficiary of the Trust on financial grounds. Furthermore, the money has been paid to her as part of a divorce order intended to achieve a clean break. It is entirely reasonable in those circumstances that the trustee should conclude that the remaining assets of the Trust should be held exclusively for the remaining beneficiaries of the Trust.”
There are two somewhat unusual elements to this case – in particular, the blessing of the trustee’s decision to submit to the jurisdiction of an overseas divorce court and exclude the wife as a beneficiary. The Royal Court exercised its supervisory jurisdiction only to ensure that the beneficiaries’ interests were protected. It was not seeking to determine which party should prevail on a purely adversarial basis.
When seeking to take lessons from the first decision, it is important to consider that the trust assets were within the Hong Kong court’s jurisdiction and that the provision of information beyond mere disclosure could assist in circumstances where the husband, wife and their one daughter comprised the beneficial class. As regards the decision to exclude a beneficiary, the Royal Court noted that the situation was by no means common, but again that the particular circumstances of the case – particularly those of the wife – swayed it.
While on this occasion, the court did not find in favour of the wife as a beneficiary, the decision demonstrates that the Royal Court continues to provide a forum where the position of the beneficial class as a whole will be considered and balanced. Decisions will be made in light of, but notwithstanding, the hostile litigation pursued between beneficiaries in an onshore divorce court. The Royal Court continues to demonstrate its ability to adapt to the varied legal and factual scenarios brought before it by trustees and beneficiaries alike.
Автор: Nigel Sanders
Источник: http://www.internationallawoffice.com/Newsletters/Detail.aspx?g=ef00da5e-554a-41a7-a6ef-f6b07b53c3f3&utm_source=ILO+Newsletter&utm_medium=email&utm_campaign=Offshore+Services+Newsletter&utm_content=Newsletter+2015-07-16