Earlier this year, the Supreme Court of England and Wales gave
its judgment in the combined cases of Pitt v Holt and
Futter v Futter, relating to the rule in re
Hastings-Bass and the doctrine of mistake. See our
client briefing for more information. The Supreme Court
shifted the English test for mistake into near alignment with the
Jersey test, as previously determined by the Royal Court of
These principles remain established by way of case law, rather
than statute. However, Amendment No. 6 to the Trusts (Jersey) Law 1984
will introduce a statutory framework for bringing applications to
the Royal Court to set aside a transfer into a Jersey trust, or the
exercise of a power in relation to a Jersey trust, on the grounds
of mistake or those falling within
The Jersey approach simplifies what has become a complex
area of law by codifying it into statute.
Mistake includes a mistake as to fact or law, provided
the mistake is of sufficiently serious character and the action
would not have been taken without the mistake being made. For the
Hastings-Bass rule, it must be shown that the person
taking the action failed to take into account any relevant
considerations, or took into account irrelevant considerations, and
would not otherwise have taken such action. The amendments also set
out who may make an application to the court on these grounds.
It will still be for the Royal Court to decide whether an action
is voidable on the grounds of mistake or
Hastings-Bass. However, these amendments provide a clear
statutory framework for making such an application, rather than
relying on complicated case law. This will provide comfort to
settlors, beneficiaries and trustees by reducing the risks
associated with mistake and Hastings-Bass
applications, thereby making Jersey an ever more attractive 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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