May 2016
BERMUDA
SUPREME COURT
TRUST – EXTENSION OF DURATION PERIOD – SECTION 4 OF THE PERPETUITIES AND ACCUMULATIONS ACT, 2009 – APPROPRIATENESS OF GRANTING EX PARTE RELIEF – LEGISLATIVE INTENT TO FACILITATE COST- EFFECTIVE APPLICATIONS
In this case, the Court was asked to make an Order under an ex parte Originating Summons pursuant to Section 4 of the Perpetuities and Accumulations Act, 2009 as amended with effect from December 2015. This was believed to be the first instance of an Order being made pursuant to the new rules.
Kawaley CJ addressed the appropriateness of ex parte proceedings in the instant case. In so doing, he referred to Bermuda’s Parliamentary Hansard in support of his finding of the relevant legislative intent, which was that Section 4, had been intended to create a more simplified means of extending trust periods than previously available. Under the pre-existing route, pursuant to Section 47 of the Trustee Act, 1975 (the “Act”), the Court had to be satisfied that proposed changes to trust terms were ‘expedient’. It was suggested and accepted by the Court that if Section 4 was to achieve its aim of being more flexible and efficient, it must have weaker test than ‘expediency’. This consideration also led the Court to proceed in a more economical manner than would have been required under Section 47.