The trust laws of Jersey and Guernsey are very similar for two
main reasons. Both jurisdictions imported the trust from English
law as it is not part of the ancient Norman customary law upon
which Jersey and Guernsey law are based, so statute was used to
Jersey enacted the Trusts (Jersey) Law 1984 ("TJL"),
which has seen five major amendments, the last, Amendment No. 5, is
due to be approved by the Privy Council in October 2012 to keep it
up to meet the needs of an increasing competitive and global
market. The Trusts (Guernsey) Law, 1989 was very much modelled on
the Jersey statute (as indeed is the trust legislation of a number
of other jurisdictions), and was also amended a number of times.
That statute, with further developments, was consolidated into the
Trusts (Guernsey) Law 2007 ("TGL"). Thus whilst the TGL
may appear to be much more modern that than the TJL, this is only
by virtue of the consolidation into a new statute rather than
further amendment of the existing one, and the common statutory
root remains, which is one reason for the similarity.
The second reason is that whilst Jersey and Guernsey are
separate jurisdictions and have their own separate Royal Courts,
they have a common Channel Islands Court of Appeal which is staffed
by the Bailiff's of Jersey and Guernsey and 12 English and
Scottish QC's who sit quarterly in any event and occasionally
as required. The decisions of this common appellate court are
binding in both jurisdictions and this has meant that the decided
case law in both jurisdictions is very similar.
There are identical or very similar provisions in respect of the
permission for non charitable purpose trusts.
the option to create trusts with no perpetuity period.
reservation of powers to the settlor without invalidating the
removal of personal liability of directors of corporate
limitation of trustees' liability to fraud, wilful
misconduct or gross negligence
exclusive jurisdiction of the Royal Court.
third party whose consent is required not being thereby a
However, there are a number of differences which are worthy of
Guernsey has a non-statutory lien over trust property for
liabilities incurred by a former trustee in his capacity as
trustee. This does not yet form part of Jersey's
disclosure of information to beneficiaries - Jersey's
position is that the TJL does not create any right to disclosure
and indeed protect trustees from disclosure of discretionary
decisions, but under case law there is a strong presumption in
favour of disclosure of the trust instrument, trust accounts and
supporting documents such as investment portfolio valuations, with
a judicial discretion to override that. By contrast Guernsey has a
positive statutory provision in favour of disclosure in the new
Guernsey trusts can own land in Guernsey, but Jersey trusts
cannot own land in Jersey.
The new TGL contains an express power for trustees to issue
Powers of Attorney, but there is no such provision in the TJL.
However the TJL does have express provisions for delegation and
trustee liability in respect thereof.
Under the new TGL judgements and any settlement agreed by the
trustees or mediation findings in respect of the trusts are binding
on the beneficiaries, which precludes any possibility of
beneficiaries taking action against the trustees in respect of
them. Jersey has no such expressed provision.
Unless any of the particular issues highlighted are of
particularly relevance there is very much a level playing field
between Jersey and Guernsey in terms of their respective trust
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.
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