This case concerned five applications involving the Mischca Trust. The first application (the "Butterfield Application") was made by the trustee of the Mischca Trust to request confirmation from the Court that the setting up of the International Fund for Arts and Sciences ('IFAS') charitable trust by them was lawful. The trustee also sought confirmation from the Court that a transfer of assets that was made by it from the IFAS and the Mischca Trust to a new charitable trust named the Maria Benson Memorial Trust ("Memorial Trust") was lawful.
The second application (the "Thommessen Application") was made by the nominal settlor of the Mischca Trust who sought to challenge the trustee's actions as breach of trust. The settlor also sought the Court's approval to replace the Applicant as trustee to the Mischca Trust.
The third application (the "Mischca Limited Action") concerned remuneration sought by the Administrator of Maria Benson's estate from the IFAS and Mischca Trust. The remuneration sought was a large portion of the trusts' assets so the trustee sought to have the matter settled under s. 68 and 69 of the Trusts (Guernsey) Law, 2007. In relation to the Mischca Limited Action, it was argued by the trustees that Public Trustee v Cooper [2001] 1 WTLR 901 permitted applications to the Court to declare valid an action by the trustee which is 'particularly momentous' but nevertheless within their powers. Following the judgment in Re: the Z Trust (Royal Court) and HSBC Trustee (Guernsey) Limited v King & Others (Royal Court), the Court held that it could approve the trustee's decision to give effect to a settlement document aimed at resolving the Mischca Limited Action as a valid use of the trustee's powers.
In relation to the Butterfield and Thommessen Applications, the Court also applied Public Trustee to grant a settlement agreement between the two parties which involved the withdrawal of both applications and for assets of the Mischca Trust and IFAS to be transferred to the Memorial Trust with a new charitable trust to be created by the settlor.
The fourth application was made by the International Committee of the Red Cross to withdraw from the Butterfield and Thommessen Applications under Rule 61 of the Royal Court Civil Rules, 2007, which was agreed by both parties and approved by the Court. The fifth application was made under s. 55 of the Trusts (Guernsey) Law 2007 by both the trustee and the settlor for the Court to declare if the creation of IFAS and the transfers to the Memorial Trust were in breach of trust. Accordingly the Court did not accept any breach of trust had been committed as the creation of the IFAS had occurred during Maria Benson's lifetime
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.
