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James Price and Emma Holland attended and spoke at the Trust Litigation Conference on 6 February 2019, alongside other notable specialists in the field.

The event brought together lawyers and professional trustees from multiple jurisdictions to consider various points of interest regarding trust litigation. The agenda was particularly interesting as a wide range of topics were considered including trustee mistakes and how to fix them; the risks of using private trust companies and the recent case X Trusts [2018] SC (Bda) 56 Civ; the effectiveness of anti-Bartlett provisions; firewall legislation and the reach of the English courts; breaches of trust in relation to investment returns; open justice within trust litigation; and disclosure requirements on third-party trusts in matrimonial proceedings.

James and Emma spoke on the channelling of trust benefits to non-beneficiaries, the wider issue of adding or excluding non-beneficiaries and blessing applications. More specifically this discussion included: 

• Potential for benefitting non-beneficiaries to be a fraud on a power and/ or in breach of trust;
• Situations in which benefiting a non-beneficiary might be appropriate, including whether distributions can be channelled through beneficiaries, whether incidental benefit is acceptable, and considering cases that are particularly nuanced on the facts;
• Blessing applications/ situations in which trustees might surrender their discretion to the court;
• The process and potential pit falls of rectification; and
• Guidelines for trustees when faced with requests to benefit non-beneficiaries and the general principle that the court will not interfere provided the trustee is acting within its powers, in good faith and not in breach of duty.

There was an active discussion following the talk as to the extent to which a trustee may be obliged to consider alternative remedies before seeking assistance from the court in the form of rectification.

Reflecting on the conference, James Price commented:

“The conference was a great opportunity to hear about the issues facing the trust litigation field at the moment. Of particular interest was the discussion around disclosure requirements which can be imposed on trusts and possible advancements in that area.”

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