Ogier secures Court of Appeal victory in Guernsey trust declaration dispute

Ogier's Guernsey Dispute Resolution team has successfully defended an appeal in Ashdown v Fraser and APIC Trustees Limited, securing an important Court of Appeal decision on the validity and construction of informal declarations of trust. 

The judgment confirms that an imperfect handwritten note can constitute an immediately effective declaration of trust where the three certainties are satisfied. It provides valuable guidance on the construction of trust documents and the equitable presumption of equality.  

Case background 

The dispute concerned the estate of the late Victor William Ashdown and ownership of the shares in Sylvan Holdings Limited. In August 1994, Mr Ashdown wrote a handwritten note stating: 

"TO WHOM IT MAY CONCERN 

THE SHARES IN SYLVAN HOLDINGS LTD ARE NOW TO BE HELD IN MARKS AND JANES TRUST". 

The note was discovered decades later in 2022 just prior to Mr Ashdown's death. A dispute subsequently arose between his two children, Mark Victor Ashdown and Jane Deborah Fraser, as to the effect of the document and whether it created a valid trust over the Sylvan shares. 

At first instance, the Royal Court held that the handwritten note constituted an immediately effective declaration of trust and declared that 50% of the Sylvan shares were held on the terms of the Victor Ashdown Guernsey Settlement, a family trust established for Jane and her family. The Royal Court also concluded that the shares were intended to be divided equally between trusts established for Mr Ashdown's two children. 

Mark Ashdown appealed to the Guernsey Court of Appeal, arguing that the document failed for uncertainty because it did not specify how the shares were to be divided between the two trusts and that the Royal Court had wrongly inferred an equal division.  

The Court of Appeal's decision 

In a unanimous judgment delivered by Roddy Dunlop KC, with Jonathan Crow KC and Robert MacRae KC agreeing, the Court of Appeal dismissed the appeal on all grounds and affirmed the Royal Court's declaration: 

• the words "ARE NOW TO BE HELD" demonstrated a present intention to create a trust and amounted to an immediately effective declaration of trust 
• the reference to "MARKS AND JANES TRUST" was properly interpreted as referring to the two existing family trusts established for Mr Ashdown's children 
• the trust property was sufficiently certain because the declaration related to all of the shares in Sylvan 
• where no unequal division was expressed or evidenced, the shares were to be treated as being held equally, applying both principles of construction and the equitable maxim that "equality is equity" 

The judgment clarifies the approach Guernsey courts will take when interpreting informal trust documents and reinforces the principle that courts should, where possible, give effect to a settlor's intentions rather than allow imperfect drafting to defeat them. 

Ogier's involvement 

Ogier acted for Jane Deborah Fraser and the trustee of the Victor Ashdown Guernsey Settlement at first instance and on appeal. The team was led by Sandie Lyne, co-head of Ogier's Guernsey Dispute Resolution team, with support from Gareth Parr.  

The case is likely to become a significant authority on the creation and construction of trusts in Guernsey and will be of particular interest to trustees, private wealth advisers and practitioners dealing with historic family trust structures and informal trust documentation.