Jersey: Resigned Trustee Wins Court Approval For Reappointment - What The RBC Trustees (Guernsey) Limited Judgement Means For The Trusts Industry

Last Updated: 7 November 2017
Article by Steve Meiklejohn

Most Read Contributor in Jersey, March 2019

The case, heard before the Royal Court in Jersey concerned a trust (the Trust), established under the law of England and Wales in 2001 by an Isle of Man incorporated company (the Company). RBC Trustees (Guernsey) Limited were appointed as the trustee (the Representor). Although the Trust was established upon standard discretionary terms, its primary function was that of an employee benefit trust (EBT), for the benefit of some 180 beneficiaries (employees, former employees of the Company and their family members). 

The Representor sought to retire as trustee and provided the notice required under the terms of the Trust to the Company by way of a letter of resignation, in January 2015. Prior to its retirement the Representor sought legal advice which confirmed that, further to the terms of the Trust, the Representor would continue to be responsible for holding the Trust assets if no trustee was appointed in its place, albeit without being able to exercise any powers under the terms of the Trust. 

Despite the Trustee reminding the Company, no replacement was lined up when the Company dissolved on 4 September 2016. The Representor therefore found itself left in the difficult position of retaining fiduciary responsibilities for the Trust assets, whilst being completely restricted in exercising any power or discretion under the terms of the Trust. Additionally, there was no power holder in office to appoint a new trustee (previously being the Company). Despite issuing a communication to the beneficiaries stating that it had retired, the Representor continued to receive communications from the beneficiaries of the Trust during this time in respect of updates, distributions, closure of sub-funds, amongst such other standard requests. 

Following advice from English chancery counsel (Counsel), an application was made by the Representor for the Court to exercise its power under Article 51(2) of the Trusts (Jersey) Law 1984 (the Law) to (re)appoint the Representor as trustee of the Trust. 


In summary, the Court was convinced by Counsel's analysis of the Representor's position, which centred on the following legal issues:

  1. the ongoing fiduciary responsibilities of a retired trustee (where there is no replacement) and the distinction between being a trustee of mere property or a trustee of a "settlement";
  2. the terms of the Trust's retirement and appointment of trustee provisions; and
  3. the definition of "trustee", and whether the Representor had standing to make the application given its position, for the purposes of Article 51 application under the Law.

Taking each issue in turn:

1.   The Court agreed that the Representor had effectively resigned by means of the resignation letter and confirmed that the terms of the retirement and appointment provisions in the Trust contemplated such a situation where there might be no trustee. The Court cited Counsel's reference to Lewin on Trusts1, which confirmed that where a trustee retires without a new trustee being appointed it is unlikely that "the retiring trustee… would be divested of fiduciary responsibility" pending the appointment of a replacement.

Counsel's observations were supported by the case of Jasmine Trustees Limited v Wells & Hind2, which explores the dichotomy where a "trustee[s] de son tort" (that is, trustees that have fiduciary responsibility for a trust by reason of conduct) are "trustees of the trust property which they happen to have vested in them; they are not trustees of the settlement." The Court therefore agreed that the Representor still held a fiduciary position in respect of the Trust assets, notwithstanding its purported retirement, by which it had divested itself of its powers and discretions under the Trust.

2.   The Court discussed the language and effect of the Trust's retirement and appointment provisions and agreed that the Representor's unilateral retirement was valid. The Court also noted that the terminology used contemplated a period of time where there would be no trustee appointed (i.e. between trustees).

3.   The Court finally turned to the applicability of Article 51(2), in particular as to whether the Representor, in having retired from the Trust, retained its standing as a "trustee" for the purposes of the Law, in making the application for its appointment.  Citing Commissioner Clyde-Smith In re BB3, it was agreed that the "definition… is wide enough to encompass a trustee de son tort…".  The Court was content to assume this (and in the event that this assumption was incorrect acknowledged that it would have granted leave to apply under Article 51(3) of the Law regardless). 


In light of the clear arguments propounded by Counsel and on behalf of the Representor, the Court had "no hesitation" in exercising its said power to (re)appoint the Representor as trustee of the Trust.

The case focusses upon the distinction between a trustee's fiduciary responsibilities and its powers and discretions provided by the terms of a trust and highlights the very real prospect of a retired trustee finding itself in this unfortunate situation. Although the Court's firm support of the Representor's position and application is reassuring, one presumes that the Representor may have then have had the difficult task of making consequential amendments to the terms of the Trust, possibly in the absence of a replacement company.     

This case is also readily applicable to the many Jersey trusts where a settlor reserves a power of appointment, or an EBT or pension scheme where a company retains a power of appointment of trustee, emphasising the importance as to what happens in the event of the death of the settlor or liquidation of the settlor company. 


1 Lewin on Trusts (19th ed. 2014), para 13-019

2 [2008] Ch 194, paras 42 – 43.

3 [2011] JLR 672 at para 43.

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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Practice Guides
by Mondaq Advice Centres
Relevancy Powered by MondaqAI
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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 (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

To Use 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.


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.


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