This was an application by Fenchurch Trust Limited ('Fenchurch') for the rectification of a deed of retirement and appointment of trustee of the Hawtry Discretionary Trust (the 'Settlement').
Lindmar Trust Company ('Lindmar') were the original trustee of the Settlement whose proper law was English. Lindmar was a Guernsey company. The Settlor wished to utilise the power under the settlement to change the trustee to Fenchurch but by mistake the deed of retirement and appointment was expressed as if the Settlor and Lindmar were co-trustees and would remain as such when Fenchurch was appointed. The error was not realised until the Settlor indicated that she wished Fenchurch to retire in favour of VTL Trust Limited. The reason why rectification was sought was because having the Settlor as a trustee may have had adverse tax consequences in the UK.
The Court had jurisdiction pursuant to Articles 5(b) and (d) of the Trusts (Jersey) Law 1984 because Fenchurch was a Jersey company and carried on the administration of the Settlement in Jersey.
Test For Rectification
The test for rectification is well established as follows:
- the Court has to be satisfied by sufficient evidence that a genuine mistake has been made to the extend that the document does not carry out the true intention of the parties;
- there has to be full and frank disclosure; and
- there has to be no other practical remedy.
The remedy of rectification remains a discretionary remedy. In this case the Court was satisfied by the evidence that the deed as executed did not carry out the true intention of the parties; that there had been full and frank disclosure; and that there was no other practical remedy.
The Court was satisfied that, in its discretion, it should grant the remedy of rectification, with effect from the date of the deed. The Court noted that "very properly" Fenchurch and the original trustee had agreed not to seek payment of their costs out of the trust fund.
Even though in this case the order sought was granted, the success of an application for rectification depends on the quality of the evidence that is able to be provided to the court. Trustees need to be able to show through substantive evidence that the 3 requirements for rectification are satisfied for an application to be successful.
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