Jersey: Trusts (Amendment No. 7) (Jersey) Law 20[●] What's Not Included

Last Updated: 24 January 2017
Article by David Dorgan

This briefing will focus on those areas consulted upon and considered for Amendment No. 7 to the Trusts (Jersey) Law 1984 (as amended) (Trusts Law), but which either will not be progressed at this time; will be subject to further consultation or will be enacted pursuant to other legislation.


Despite Article 2 of the Trusts Law stipulating that a trustee holds property for the benefit of any person "whether or not yet ascertained or in existence", several decisions of the Royal Court have been unhelpful in this area and so consideration was given to clarifying the issue. One option considered was the adoption of a regime akin to that of the STAR trust in the Cayman Islands (where, most pertinently for these purposes, an enforcer is appointed pursuant to the trust deed or by court order rather than a beneficiary having the right to enforce the trust). The Government will consider the responses further with the Working Group before confirming its proposals.


Consideration was given as to the possibility of including an arbitration clause in a trust instrument which binds beneficiaries. This was ultimately not supported on the basis that respondents were unaware of a demand for arbitration and a key reason for choosing a Jersey trust is its respected judiciary in matters of trust law together with an extensive body of trust cases which would likely reduce if arbitration were to become prevalent. Also, there already exists the option to agree to arbitration or mediation should parties wish to do so. Therefore, Government is of the view that the introduction of provisions making an arbitration clause binding on a beneficiary is not necessary at this time.


Article 31(3) was introduced by Amendment No. 5 to permit a trustee to contract with itself as trustee of another trust. Consideration was given to removing any ambiguity over the retrospective nature of Article 31 and to expressly permit a trustee to contract with itself in different capacities (i.e. as an individual/company and as a trustee). Consultation revealed there is no clear evidence that this is something that is causing widespread difficulty and therefore an amendment is not merited at this time.


The consultation paper noted that the Trusts Law is silent upon whether, following a merger of two corporate trustees, the surviving trustee entity continues to be validly appointed as trustee of the trusts of the non-surviving trustee entity without further action. Whilst responses did not highlight an amendment as a necessity, the Government is minded to make a clarification amendment within the Companies (Jersey) Law 1991 rather than the Trusts Law.


If resident in Jersey, a person has unrestricted freedom as to whom they leave their realty, but their personal effects are subject to légitime or forced heirship rights. This includes Jersey trusts established by a Jersey resident settlor. There were detailed responses to this consultation question with the common view to abolish légitime.

However, it was considered inappropriate to abolish légitime without there being protective legislation to protect those inappropriately left without adequate provision following the death of a testator. Therefore, the Government intends to consult specifically on légitime in order to provide an opportunity for the whole community of Jersey to comment on its retention or abolition.


Article 11(2)(a)(iii) of the Trusts Law restricts trustees directly holding Jersey immovable property. Some respondents were strongly in favour of removing this restriction, particularly given the ability to circumvent the provision by interposing a company owned by the trustee. The Government will further consider the removal of this restriction, ideally as part of a comprehensive review of Jersey property law rather than in isolation of the Trusts Law.


One of the industry associations was keen to see this pursued but equally warned that it must not undermine the strength of the existing trust concept and, if adopted, should be enacted as a separate chapter in the Trusts Law or as a separate law altogether. The Government intends to further explore this option during 2017 through further consultation.


In such circumstances, the basis for the court's jurisdiction to ratify the circumstances is not certain and so a general legislative treatment might be desirable. At this time, the Government will not take further steps, but will review recent case law and associated issues with the Trusts Working Group with a view to further consideration if considered necessary.


Firewall legislation requires certain questions (e.g. validity or interpretation) relating to a Jersey trust to be determined by Jersey law and not by foreign law or rules. In light of critiques published in peer journals, the consultation paper asked if amendments should be made to Article 9. All respondents who commented on this agreed that there should be no further change to this Article at this point in time.


Following the case of re Z Trusts [2015], and in particular the question of priority of creditor claims by former trustees, the consultation asked if a formal statutory regime applicable to trusts should be introduced. Currently, priority of claims will be determined by the courts. The majority of respondents did not support statutory intervention preferring the courts to determine the best approach in an individual case.

The Government takes the view that it is not appropriate at this time to pursue a change in the context of the Trusts Law alone and so intends to establish a Working Group to consist of the Viscount, representatives from Community and Constitutional Affairs, and other interested parties, to consider this further.


As can be seen, a number of issues will continue to be consulted upon but not necessarily within the confines of the Trusts Law. As always, Jersey continues to consider changes to its laws to provide clarity or improve its position in the market place.

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

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

In association with
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.