International Law

Knowledge of Guernsey Trusts will Assist Recovery Efforts

By Rick Rein

In 2007, the trust law in Guernsey changed to allow non-charitable purpose trusts. Such trusts are enforceable by the appointment of a person who can enforce the trust's terms, an enforcer. The enforcer cannot also be the trustee, but could be connected to the trustee or the settlor of the trust.

A non-charitable purpose trust includes the holding or ownership of property for "any purpose whatsoever, whether or not involving the conferral of any benefit on any person and includes, without limitation, the holding or ownership of property and the exercise of functions." This structure is typically used for holding shares in a private trust company. What is important about this definition, and to asset recovery efforts, is what makes a trust invalid. A trust may not be formed under fraud, misrepresentation or breach of fiduciary duty. It cannot be for immoral purposes or contrary to public policy.

The 2007 law provides that all questions relating to a Guernsey trust is to be determined in accordance with Guernsey law. Hence, when confronted with a Guernsey trust in a recovery effort, one should consider trying whether the trust can be set trust aside for improper formation purposes under Guernsey law.  

Full post as published by International Asset Recovery Law Blog on January 19, 2009 (boomark / email).