Drafting Trusts and Will Trusts in the Channel Islands, 3rd Edition

Authors: James Kessler KC, Paul Matthams

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Since the publication of the second edition in 2012 there have been a number of changes to trusts legislation in both Jersey and Guernsey. Key changes relevant to those drafting trust documents for use in both jurisdictions include:

An amendment to the Trusts (Jersey) Law 1984 in 2018
- Clarified the rules that may be contained in a trust instrument concerning the disclosure or information or documents concerning a trust to beneficiaries and other persons.
- Widened the statutory provisions concerning the accumulation of income to capital by providing that where income is not distributed, and no trust to accumulate it or power to accumulate it to capital or retain it as income applies, the income retains its character as income. This part of the amendment also confirmed that there is no time period within which a power to accumulate income must be exercised.
- Clarified the statutory provision concerning the reasonable security to which a trustee is entitled on retirement or distribution of trust assets or the termination of the trust where such reasonable security is provided by an indemnity. It is now clear that the “protection” of such an indemnity may now extend to, among others, officers and employees of a corporate trustee and their heirs and successors, and persons may enforce the indemnity whether or not they were parties to the original document by which the indemnity was created.
Since the last edition of this book, Guernsey and Jersey have both changed their laws to permit same sex marriages, Guernsey in 2017 and Jersey in 2018.
Another significant law change in both Islands since the last edition concerns capacity. The Capacity and Self-Determination (Jersey) Law 2016 came into force on 1 October 2018, replacing the previous curatorship regime and established for the first time the right of a Jersey resident to plan for the risk of future mental incapacity by enabling them to granting lasting powers of attorney for health and welfare on the one hand and for property and financial affairs on the other. Guernsey introduced lasting powers of attorney in 2022.
This third Edition also draws on changes to legislation and case law in other jurisdictions which may be of relevance in Jersey or Guernsey in the future.

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Drafting Trusts and Will Trusts in the Channel Islands, 3rd Edition

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