Guernsey: Guernsey Purpose Trusts

Last Updated: 30 January 2008
Article by Alison MacKrill

Most Read Contributor in Guernsey, November 2018

Originally published in STEP Journal, Guernsey Supplement, November/December 2007

A Guernsey law trust, as it currently stands under the Trusts (Guernsey) Law, 1989 (the "Trusts Law"), in order to be valid shall have one or more beneficiaries or be created for a charitable purpose.

A beneficiary must be identifiable by name or ascertainable by reference to a class or a relationship to another person. To the extent that a trust has no beneficiary identifiable or ascertainable, unless it was created for a charitable purpose it is invalid and unenforceable.

In other words, Guernsey law followed the English law principle that there must be somebody in whose favour the law can decree performance. If there is no declared object there is a resulting trust in favour of the settlor or his representatives.

In some respects the Trusts Law is narrower than English law which allowed certain exemptions from the beneficiary principle.

Many of the English decisions are concerned with the validity of trusts which were not charitable bequests and were therefore void in English law as being perpetuities.

Prior to the passing of the Trusts Law there was no law in Guernsey which prohibited the constitution of a trust under which the trustees remain vested in perpetuity. This mirrored Scottish law where the privilege of creating perpetuities under trust was not limited to charitable bequests. So the restrictions presently placed by the Trusts Law do not form part of a logical whole.

All Change

All this is about to change with the coming into effect of a new trusts law. The Guernsey legislature has examined the rationale behind the invalidity of a non-charitable purpose trust and has decided to provide for the validity of such trusts through the mechanism of enforceability. Such enforceability is provided for by the appointment of a person who can enforce the terms of the trust, or otherwise, an enforcer. Moreover by returning to the position prior to the Trusts Law that there is no prohibition against a perpetual trust any conflict that such trusts are void as being perpetuities is removed.

Questions have arisen in jurisdictions which have passed legislation providing for non-charitable purpose trusts over what a "purpose" may be. Doubts were raised whether the formation of a trust for the purpose of holding one or more assets was properly a purpose in and of itself. The new law provides that a purpose includes the holding or ownership of property. The new law also provides that all questions relating to a Guernsey trust are to be determined in accordance with the law of Guernsey, both with respect to validity generally and by making it clear that a trust formed for the purpose of ownership of property is valid. It is likely that non-charitable purpose trusts will be formed for both commercial and non-commercial reasons including, in particular, holding special purpose vehicles, whether the shares in a private trustee company or for securitisation purposes.

Commentators have queried whether a non-charitable purpose trust would be enforced in an English Court of law. As the UK is a signatory to the 1985 Hague Convention on the Law Applicable to Trusts and on their recognition it is likely that the validity of such a trust would be recognised. If the Convention did not apply for any reason then it is unlikely that an English Court would not uphold the validity of the trust under Guernsey law. The new trusts law also covers what happens should the situation arise that the purpose for which the trust was formed has come to an end by applying the cy près doctrine to any trust for purposes. It is also worth noting that a non-charitable Guernsey purpose trust, like any other trust, may have a non resident trustee.

Guernsey law purpose trust may have any or all of beneficiaries, charitable and non-charitable purposes. If there are beneficiaries, however, then the provisions relating to rights of information will apply, unlike with a Cayman STAR trust.

With these changes to the Trusts Law Guernsey is setting out a clear and simple means of creating purpose trusts which may be used for both commercial and non-commercial applications, including trusts which would otherwise fail were they not considered to be charitable but philanthropic only.

Where tax is not an issue, the mixed private and purpose trust may be of interest for the settlor who wishes to benefit a small group of persons to create a private charitable trust. Upon a failure of the trusts the funds would be applied cy près. By this means trusts constituted for wide purposes will be given the liberal treatment given to trusts for charity in the narrower sense.

For more information about Guernsey's finance industry please visit www.guernseyfinance.com .

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions