Please ensure Javascript is enabled for purposes of website accessibility


Big things are happening at Ogier. Change is embedded in everything we do. It is redefining our talent, our ways of working, our platforms of delivery, our culture.



We have the expertise to handle the most demanding transactions. Our commercial understanding and experience of working with leading financial institutions, professional advisers and regulatory bodies means we add real value to clients’ businesses.

View all services

Business Services Team

View all Business Services Team


Our sector approach relies on smart collaboration between teams who have a deep understanding of related businesses and industry dynamics. The specific combination of our highly informed experts helps our clients to see around corners.

View all sectors


Ogier provides practical advice on BVI, Cayman Islands, Guernsey, Irish, Jersey and Luxembourg law through our global network of offices across the Asian, Caribbean and European timezones. Ogier is the only firm to advise on this unique combination of laws.

News and insights

Keep up to date with industry insights, analysis and reviews. Find out about the work of our expert teams and subscribe to receive our newsletters straight to your inbox.

Fresh thinking, sharper opinion.

About us

We get straight to the point, managing complexity to get to the essentials. Our global network of offices covers every time zone. 

No Content Set

Representation of Wilkes and Wilkes [2015] JRC 200


29 October 2015


Save as PDF

Representation of Wilkes and Wilkes [2015] JRC 200

The latest application dealing with the law of mistake has been decided by the Jersey Royal Court. It is yet another application that has arisen from the activities of the firm of English Solicitors Baxendale Walker which is no longer in existence.

Mr and Mrs Wilkes wished to raise a loan against their home (the Property) partly to pay off a business loan and partly to provide cash.

Upon the advice of Baxendale Walker, the Wilkes entered into a scheme whereby (they were told) they would each be able to receive an annuity income from the date that each of them respectively reached 75 years of age.

In summary, the scheme required i) the establishment of a trust in Jersey (the Trust) with an offshore trustee (the Trustee) and ii) the entering into by each of the Wilkes of an Estate Annuity Purchase Deed (EAPD) whereby the Trustee would pay the Wilkes an annuity as consideration for the transfer by each of the Wilkes to the Trustee of a 50% beneficial interest and equity of redemption in the Property.

The Wilkes also wished to invest in a property on a buy-to-let basis (the Investment Property). The Investment Property was bought by a company called Cheveral Investments Limited and all fees and legal charges were provided by the Trustee with finance agreements being entered into by one of the Wilkes.

There are no longer any assets in the Trust and the Property is in negative equity. All that is left is the Investment Property but this is still held in the name of Cheveral Investments Limited.

The Court has intervened to set a number of similar schemes aside upon the grounds of mistake. Notwithstanding that the EAPDs involved were said to be governed by English law, the Trust itself was governed by Jersey law. Accordingly, the Court applied the Jersey law of mistake to the application pursuant to article 9(1) of the Trusts (Jersey) Law 1984 (the Law) which provides that the validity of a Jersey trust and validity and effect of any transfer of property into a Jersey trust shall be determined in accordance with the law of Jersey with no rule of foreign law affecting such a question.

The Court was willing to consider the creation of the EAPDs alongside the creation of the Trust on the basis that the two were inextricably linked in that the EAPDs were an essential part of the scheme.

The Court confirmed that the test for mistake is the same whether it is approached under Article 11 or Article 47(e) of the Law and reaffirmed the test for mistake as set out in Re Lochmore Trust1, namely:

  • was there a mistake on the part of the settlor?
  • would the settlor not have entered into the transaction “but for” the mistake?
  • was the mistake of so serious a character as to render it unjust on the part of the donee to retain the property?

The mistake was attributed to the scheme itself. The Court held that the Wilkes had been mistaken when they entered into the scheme on the basis that it would have been unlawful for the Trustee to pay the annuity on the basis that it was not in possession of a permit authorising the Trustee to carry out long term insurance business. The EAPDs were therefore classed as illegal contracts. Secondly it was impossible for the annuity to be paid at the level set out in the EAPDs as it was found that there would always have been insufficient assets in the Trust.

The Court was satisfied that the above findings constituted a mistake made by the Wilkes as they entered into a scheme that was incapable of performance. Furthermore the Court held that the Wilkes would not have entered into the scheme ‘but for’ the mistake made and that the mistake was of so serious a character as to render it unjust on the part of the donee to retain the property. The Court noted that there were no beneficiaries of the Trust who would suffer from it being set aside.

The Court declared the Trust and the EAPDs to be invalid and that the assets of the Trust (including the Investment Property held by Cheveral) were held on bare trust for the Wilkes and were so held at all times.

This case is further clarification that, whether the matter is approached under article 11 or the more recently drafted article 47(e) of the Law, the Court will most likely apply the same test. It is also noteworthy that the mistake was not based on adverse tax consequences as we have seen on many occasions but rather on the scheme’s incapability of performance.

1[2010] JRC 068

About Ogier

Ogier is a professional services firm with the knowledge and expertise to handle the most demanding and complex transactions and provide expert, efficient and cost-effective services to all our clients. We regularly win awards for the quality of our client service, our work and our people.


This client briefing has been prepared for clients and professional associates of Ogier. The information and expressions of opinion which it contains are not intended to be a comprehensive study or to provide legal advice and should not be treated as a substitute for specific advice concerning individual situations.

Regulatory information can be found under Legal Notice

No Content Set