Nov 2013
BRITISH VIRGIN ISLANDS
HIGH COURT
TRUSTS – DISCRETIONARY TRUST – NO EXPRESS POWER IN TRUSTEE TO VARY IDENTITY OF BENEFICIARIES OR TERMS OF SETTLEMENT – WHETHER POWER OF APPOINTMENT AVAILABLE TO EXCLUDE BENEFICIARY AND VARY TERMS OF SETTLEMENT
This case concerned an application by the trustee of a discretionary trust (the “Trust”) for a declaration that it had the power under the deed of settlement to permanently exclude the settlor from benefitting under the Trust. The settlor, along with his children and remoter issue, were beneficiaries of the Trust and there was no express power under the Trust to vary the identity of the beneficiaries or the terms of settlement. A worldwide freezing order had been previously made in England against the settlor and included assets of the Trust and the trustee by its application sought to ensure that the Trust asset would not be available to settle the obligations of the settlor.