James Campbell
Partner | Legal
Jersey
Partner
Jersey
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.
Services
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.
Sectors
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.
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.
Legal
Corporate and Fiduciary
Consulting
Banking and Finance
Corporate
Dispute Resolution
Employment law
Intellectual Property
Investment Funds
Listing services
Local Legal Services
Private Wealth
Property law
Regulatory
Restructuring and Insolvency
Tax
Banking and Finance overview
Asset Finance
CAYLUX Fund Finance
Debt Capital Markets
Derivatives
Fund Finance
Islamic Finance
Leveraged Finance
Listing services
Real Estate Finance
Regulatory
Restructuring and Insolvency
Structured Finance
Sustainable Finance
Corporate overview
Economic Substance
EIIS Services in Ireland
Equity Capital Markets
Insurance and Reinsurance
Listing services
Mergers and Acquisitions
Private Equity
Real Estate Structuring, Acquisitions and Disposals
Regulatory
Technology and Web3
Dispute Resolution overview
Banking Disputes
Corporate and Financial Services Disputes
Crypto Disputes
Enforcement of Judgments and Awards
Fraud and Asset Tracing
Funds Disputes
Insurance Disputes
International Arbitration
Regulatory
Restructuring and Insolvency
Section 238 Shareholder Appraisal Rights
Shareholder and Valuation Disputes
Trusts Disputes and Applications
Investment Funds overview
Hedge Funds
Managers and Sponsors
Private Equity
Real Estate, Infrastructure and Energy Funds
Regulatory
Sustainable Investing and Impact Funds
Technology and Web3
Local Legal Services overview
Cayman Local Legal Services
Channel Islands Local Legal Services
Ireland Local Legal Services
Employment law
Estate Planning, Wills and Probate
Expat services
Family Office
Intellectual Property
Make your Guernsey will online
Make your Jersey lasting power of attorney online
Make your Jersey will online
Notary public services
Relocating your business
Relocating your family
Property law
Accounting and Financial Reporting Services - Ogier Global
Cayman Islands AML/CFT training - Ogier Global
Corporate Services - Ogier Global
Debt Capital Markets - Ogier Global
Fund Services - Ogier Global
Governance Services - Ogier Global
Investor Services - Ogier Global
Ogier Connect - Ogier Global
Private Wealth Services - Ogier Global
Real Estate Services - Ogier Global
Regulatory and Compliance Services - Ogier Global
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.
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.
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.
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
Exception:
Website.Models.ViewModels.Components.General.Banners.BannerComponentVm
Insight
07 January 2022
Jersey
Updated January 2022
Jersey trustees typically spend a great deal of time complying with various international reporting requirements, including FATCA and CRS. However, two cases demonstrate that the long standing issue of disclosure of information to Beneficiaries of trusts can still cause difficulties and should not be overlooked.
Under Jersey trust law, there is a strong presumption that many categories of Beneficiaries should be provided with a copy of trust documents and accounts if these are requested, unless there is a good reason to refuse.
A question that arose in an English case is whether advice provided by lawyers to the trustee is privileged and therefore exempt from this requirement to disclose to Beneficiaries. In the case of Blades –v- Isaac and Alexander the Beneficiaries wished to see legal advice provided to the trustees. Although acknowledging there is no absolute right for Beneficiaries to see trust documents, if legal advice is a trust document then a trustee would normally need a positive reason to refuse disclosure to a Beneficiary. However, if the advice were not a trust document and privileged then the trustee could refuse disclosure. The court distinguished between advice sought personally, perhaps if the trustee was concerned about a personal attack, and advice obtained as trustee for the benefit of the trust. If the trustee was seeking personal advice than they would normally have personally to pay for this advice. The court made it clear that a trustee cannot expect to take legal advice at the expense of the trust fund and then expect this advice to be viewed as personal to it. This distinction can be easily overlooked, and when seeking legal advice trustees need to consider who should pay and whether they wish it to be privileged. Not all legal advice is privileged in any event, but a trustee does need to consider privilege and not assume that any legal advice is confidential from everyone. It may well be, for example, that legal advice would be privileged as against third parties seeking to attack the trust or its assets. However, if this advice is a trust document then the privilege is vested in the trust and the advice likely available to the Beneficiaries. Although this was an English case, it is likely that this position would be reflected in the Jersey courts.
The question of disclosure to Beneficiaries can cause concern to Settlors, perhaps if Beneficiaries are young or otherwise vulnerable. It is quite common for Settlors to wish to restrict access in trust deeds. However, a Guernsey case emphasised the difficulty with achieving this and confirmed that such restrictions could not override trustees' fundamental duty to account to Beneficiaries. Therefore, even the inclusion of express provisions in the trust deed restricting disclosure to Beneficiaries in the trust deed are unlikely to prevent Beneficiaries gaining access to certain trust documents and accounts. Again, we consider this would be the position in the Jersey Courts.
These recent cases demonstrate that Beneficiaries' rights to access information about trusts still causes issues and Trustees must ensure they consider this when seeking legal advice and drafting trust deeds.
This article first appeared in the JEP Wealth Management Review.
James Campbell
Partner | Legal
Jersey
Partner
Jersey
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
Sign up to receive updates and newsletters from us.
Sign up
No Content Set
Exception:
Website.Models.ViewModels.Blocks.SiteBlocks.CookiePolicySiteBlockVm