PART 4 The Commission’s proposals
4.1 To clarify Article 25 we propose that the sense of its existing category (d) and closing lines be restated in a separate sub-paragraph 1(a) and in positive form, and that that sub-paragraph should be clearly stated to be "subject to the terms of the trust."
4.2 To preserve the principle of accountability we propose that new sub-paragraphs 2(a) and (b) be added to Article 25 whereby the Court may declare that the terms of the trust do not render the trustees sufficiently or appropriately accountable to the beneficiaries, and may make a consequential order amending or rejecting the terms of the trust.
4.3 As to the mechanics of obtaining such a declaration and order we propose the addition of a new paragraph (3) (as in other comparable provisions in the Law) equating them with Article 47, providing that application may be made by the Attorney-General, by the trustee or a beneficiary, or, with the leave of the court, by any other person.
4.4 Although we are not proposing the introduction of any language expressly defining a statutory duty for trustees to inform beneficiaries that they are beneficiaries, we are proposing a new paragraph (4) to Article 25 acknowledging that there are such duties and making it clear that nothing in the Trusts (Jersey) Law derogates from those duties.
4.5 We recognise that should the States decide to implement this Report the detailed drafting of the amendments we are proposing will be a matter for the States Law Draftsman, but we believe that the desired result could be achieved by re-writing Article 25 in the following terms:
Article 25
Disclosure.
(1) The following provisions (1)(a) and (b) shall apply subject to the terms of the trust and subject to any order of the court:
(a) a trustee shall on application in writing being made to him by a beneficiary under the trust not being a charity, or by a charity which is referred to by name in the terms of the trust as a beneficiary under the trust or by the enforcer in relation to any non-charitable purposes of the trust disclose to the applicant all documents which relate to or form part of the accounts of the trust.
(b) a trustee shall not be required to disclose to any person, any document which -
(i) discloses his deliberations as to the manner in which he has exercised a power or discretion or performed a duty conferred or imposed upon him; or
(ii) discloses the reason for any particular exercise of such power or discretion or performance of duty or the material upon which such reason shall or might have been based; or
(iii) relates to the exercise or proposed exercise of such power or discretion or the performance or proposed performance of such duty.
(2) The following provisions (2)(a) and (b) shall apply notwithstanding the terms of the trust:
(a) The court may on application made to it declare that in the particular circumstances of the trust its terms do not render the trustees sufficiently or appropriately accountable to the beneficiaries or any of them;
(b) Pursuant to such declaration the court may extend or restrict the rights of all or any beneficiaries to information regarding the trust either generally or in a particular instance or may make such other order as it thinks fit.
(3) An application to the court under this Article may be made by any person referred to in sub-paragraph (3) of Article 47.
(4) Nothing in this Law shall derogate from any duty of the trustee to inform a beneficiary that he is a beneficiary under the trust.
KEITH BAKER, Chairman
DONALD LE BOUTILLIER
DAVID LYONS
DAVID MOON
WILLIAM BAILHACHE
October 1998