With the availability reserved powers legislation in most offshore jurisdictions, the categorisation of powers held by a person other than a trustee as either fiduciary or non-fiduciary is becoming an increasingly hot topic. Notably, the statutory approach to categorising (or not categorising) powers varies between jurisdictions.
The acceptance by the Jersey Court in the recent Jersey case of In the matter of Piedmont Trust and Riviera Trusts that the power to appoint the protector was a fiduciary power, even when the power was held by beneficiaries, has added further fuel to practitioners’ interest in the topic.
In all cases, the terms of the particular trust need to be carefully considered in order to determine the nature and content of the duties of power-holders. The nature of each power is also relevant to the analysis. It is not necessarily just a case of determining whether the type of person who holds the power has traditionally been regarded as a fiduciary. A person who holds several powers under a trust instrument may hold certain powers which are fiduciary and others which are non-fiduciary.
An analysis of the content of duties of power holders may not be as simple as categorising a power as fiduciary or non-fiduciary. That is just the beginning of the exercise or perhaps no more than an aid to facilitate more precise analysis or construction. Consequently, while certain presumptions may serve as a starting point to categorising powers, they should not be treated as definitive, nor can they set out the precise content of the power-holders’ duties.
Fiduciaries and fiduciary powers
There is no dispute that powers vested in a fiduciary, such as trustee, are fiduciary powers. In the context of a trust, holders of fiduciary powers, are subject to duties to honestly and in good faith and to:
· exercise the powers in the best interests of the beneficiaries;
· avoid any unauthorised conflicts of interests so not to exercise the powers in preference to its own interests at the exclusion of the beneficiaries’ interests;
· disclose any authorised conflicts to the beneficiaries and properly manage such conflicts;
· properly consider whether or not to exercise its powers from time to time;
and so on.
Do the types of persons who may be fiduciaries consist of a finite list that has not expanded to include power-holders other than trustees or persons who have not historically been recognised as being fiduciaries? If the types of persons who may become fiduciaries are not limited, in what circumstances may a person become a fiduciary in relation to another? Is it when, in the particular circumstances of the relationship, one person (the fiduciary) would reasonably be expected to owe duties of trust and confidence to the other?
Perhaps part of the answer is that a person:
is not subject to fiduciary obligations because he is a fiduciary; it is because he is subject to them that he is a fiduciary.
Beneficiaries who hold powers to appoint or remove trustees
Subject to statutory default positions and the terms of the trust providing to the contrary, powers granted to beneficiaries are generally construed as non-fiduciary powers, at least as far as most powers other than the powers to appoint and remove trustees are concerned.
With certain notable exceptions, a significant majority of practitioners appear, as a general proposition, to consider that a power to appoint trustees cannot be anything but a fiduciary power. The English decision of Re Skeats’ Settlement has been applied consistently on this point. A similar approach has been taken in relation to the power to remove trustees. In Skeats’ the trust deed was silent as whether or not the power was fiduciary. However, the Court held that it must be a fiduciary power given the beneficiaries’ interest in having a trustee appointed who has the integrity and capability to safeguard and properly manage the trust fund.
Lewin on Trusts expresses, citing Skeats, that: Powers of appointment of new trustees are fiduciary powers. However, as we will see, even Lewin also notes some exceptions to this rule. In addition to the reasoning in Skeats, Lewin indicates that, aside from statutory powers of appointment, given the nature of the power, its holders must be under a duty to consider exercise of the power from time to time- a key distinguishing feature of a fiduciary power from a non-fiduciary power. However, what if the:
· power-holder merely has the power to veto a trustee’s appointment of a successor or additional trustee?
· statutory default position expressly provides that the powers to remove or appoint trustees are not fiduciary?
· trust deed, in an extreme and admittedly unlikely case, expressly provides that the power to appoint and remove trustees held by a beneficiary is an unlimited beneficial non-fiduciary power which the power-holder may exercise for his own benefit without having regard to the interests of other beneficiaries?
The notable exceptions to the view that the power to appoint trustees is a fiduciary power include David Pollard who has written extensively on the topic in relation to powers granted to employer sponsors in respect of pension trusts in England and Wales. Among other things, he considers that, as employers are subject to the Imperial duty to act in good faith the power to appoint and remove trustees need not be elevated to a fiduciary power when held by employer sponsors of pension trusts.
Donovan Waters QC also acknowledges the possibility that the power to appoint or remove trustees may be non-fiduciary in circumstances where the power is given to a particular person to protect his own interests. He has referred to an example where the testator of a testamentary trust provides his widow, the primary beneficiary of the trust, with the power to appoint and remove trustees.
Lewin also considers that powers of beneficiaries under section 19 of the Trusts of Land and Appointment of Trustees Act 1996 in England and Wales to unanimously appoint trustees is a non-fiduciary power because the beneficiaries in effect would owe any duties to themselves.
The trust instrument may also expressly provide that the powers held by the protector or enforcer are non-fiduciary. These powers held by protectors and enforcers often include powers to appoint and remove trustees. There do not appear to be any cases setting aside such a provision and, indeed, the House of Lords in Chapman v Chapman rejected in strong terms a contention that a court has the power to rewrite the trust document. Section 2A of Bermuda’s Trusts (Special Provisions) Act 1989 expressly provides that the trust deed may categorise powers as fiduciary or non-fiduciary.
The statutory default provision in Bermuda now provides that powers, if held by a beneficiary or a settlor, shall be non-fiduciary unless the trust deed provides otherwise. Further, the statutory default position in Guernsey and Cook Islands is that, subject to the terms of the trust, powers held by a person other than a trustee are not fiduciary.
In the matter of Piedmont Trust and Riviera Trusts
In this recent Jersey case the Court’s classification of the various powers held by persons other than trustees was significantly shaped by:
· the terms of the trusts;
· the concessions made by parties regarding the classification of powers; and
· a relatively extreme or unusual factual background.
In this case there were two trusts which we shall refer to as the P Trust and R Trust.
In relation to the P Trust, the:
· power to appoint trustees was vested in the protector and if there was no protector, a majority of the adult beneficiaries;
· trust instrument expressly provided that: The protector shall act in a fiduciary capacity.
· protector of the P Trust was the patriarch of the family and was a beneficiary;
· patriarch appointed a Kairos Trustees (NZ) Limited (Kairos), a New Zealand company, to replace Jasmine Trustees Limited (Jasmine), a Jersey licensed trust company; and
· patriarch then retired as protector.
The majority of the beneficiaries were not protectors and the power therefore would not be deemed to be fiduciary by the above express provision in the trust instrument. However, aside from the view that the power to appoint trustees is inherently a fiduciary power, there is considerable recent authority for the proposition that a power originally held by a fiduciary will continue to be construed as being a fiduciary power notwithstanding that a person (who is not traditionally regarded as a fiduciary) is subsequently vested with the power. This presumption may be countered by the:
· background that the trust deed provided the adult beneficiaries the power to appoint trustees in circumstances where there was no protector; and
· general presumption is that that powers granted to beneficiaries are non-fiduciary powers.
In relation to the R Trust, the:
· Jasmine and Lutea Trustees Limited (also a Jersey licensed trust company) were trustees;
· power to appoint trustees was vested in the protector;
· protector had the power to appoint his successor;
· trust deed did not express whether the protector’s powers were fiduciary or otherwise; and
· patriarch appointed his sons as protectors in his place.
However, the Court noted that the terms of the R Trust contained provisions for the:
· protector’s succession;
· protector to release its powers; and
· protector to charge fees,
which indicated that the protector was a fiduciary office holder. This approach to categorising powers held by persons who are not trustees has been applied in a number of other offshore common law cases including another Jersey case of In Re Bird Charitable Trustand the Bermuda case of Von Knieriem v Bermuda Trust Co. and Grosvenor Trust.
Notably, all parties in the case readily agreed that the power to appoint trustees is a fiduciary power even where that power is vested in a person other than an outgoing trustee, such as a beneficiary. The Court expressed that: In this the parties are undoubtedly correct. Initially, the sons argued that the power in respect of the R Trust was a non-fiduciary power before subsequently conceding that the power was fiduciary.
The extreme or unusual facts included that the:
· patriarch’s two sons (who were purportedly appointed as new protectors of each trust and were beneficiaries of each trust) were involved in a major dispute with another beneficiary (their sister) regarding their interests in 2 companies in the United States (US);
· US proceedings involved meaningful allegations of dishonesty and other breaches of fiduciary duty against the patriarch and his sons in respect of the daughter’s interests in those companies;
· patriarch subsequently wished to withdraw the appointment of Kairos as new trustee; and the new protectors of the P Trust who had subsequently purportedly been appointed (the patriarch’s sons), also subsequently purported to remove Kairos; and
· Kairos: (i) was not a licensed trust company;(ii) was ultimately owned by one individual; (iii) had as its directors individuals who did not appear to have any meaningful experience acting as trustees; and (iv) refused to provide Jasmine basic due diligence information.
The Court determined that the appointment of Kairos as trustee satisfied the high threshold of being irrational in the Wednesbury sense (ie, a decision that no trustee acting reasonably could have made or, put another way, is outside the band of decisions within which reasonable disagreement is possible.
The Court determined on the facts, that the sons’ conflicts of interests were pervasive and consequently it would be impossible for them to fulfil their fiduciary duties as protectors of the trusts. Consequently, the sons’ appointment as protectors by the patriarch (R Trust) and majority of the adult beneficiaries (P Trust) was also deemed irrational and therefore in breach of the appointers’ fiduciary duties. The extent that the majority of the beneficiaries who appointed the sons as protectors of the P Trust had knowledge of the details of the sons’ conflicts of interest did not appear to be explored in the judgment.
Consequently, the Court determined it had the power to set aside the exercise of the powers i.e. the appointments of the protectors and trustees.
· noted that fiduciary powers held by a person other than a trustee had not been fully explored by the courts; and
· considered that such powers were held subject to the qualification that, provided the power-holders otherwise complied with their fiduciary powers, they were not debarred from benefitting in some way from the exercise of the powers.
A fiduciary power subject to a qualification such as this might be regarded as a limited (or qualified) fiduciary power because the fiduciary power-holder is, as a consequence of the terms of the trust, entitled to take into account his own interests when considering whether or not to exercise, and when exercising, the power. There are other ways that the duties ordinarily imposed upon a holder of a fiduciary power may be limited or qualified.
However, it is clear that beneficiaries who hold fiduciary powers will need to carefully manage their conflicts of interests. Holders of limited non-fiduciary powers may too be required to manage their conflicts of interests.
Statutory default positions
· Jersey, Cayman Islands, Isle of Man and Seychelles do not expressly provide that protectors’ powers are either fiduciary or non-fiduciary;
· Bahamas and the British Virgin Islands respectively provide that, subject to the terms of the trust, protectors shall not be liable to beneficiaries for the bona fide exercise of the powers;
· Guernsey, as mentioned, provides that, subject to the terms of the trust, the granting of persons powers in the trust instrument does not impose fiduciary duties on power-holders;
· Cook Islands’ provides that, subject to the terms of the trust, a protector shall not owe fiduciary duties; and
· Belize, St Kitts and some other jurisdictions provide that, subject to the terms of the trust, protectors' powers are fiduciary.
These different approaches reflect a lack of consensus regarding how classification of powers of non-trustee power-holders ought to be approached (assuming they ought to be classified in statute at all).
Section 2A Bermuda’s Trusts (Special Provisions Act) 1989
Following amendments which came into effect last year, Bermuda’s Trusts (Special Provisions) Act 1989 provides that:
2A(6) A trust instrument governed by the laws of Bermuda may provide that the reservation or grant of any of the powers set out in subsection (2) shall not impose a fiduciary duty on the holder of such powers.
2A(7)In relation to any trust governed by the laws of Bermuda created after the commencement date of the Trusts (Special Provisions) Amendment Act 2014, in the absence of any contrary provision of the trust—
(1) in the case of the reservation by a settlor or the grant to a beneficiary of any of the powers specified in subsection (2), where so long as the holder of the power is not the sole trustee, such powers shall be personal and non-fiduciary; and
(2) in any other case, such powers shall be fiduciary.
The powers listed in subsection (2) notably include the power to appoint and remove protectors and trustees along with several other powers.
Unlimited non-fiduciary powers
It is suggested that non fiduciary powers may be divided into further sub categories of limited non-fiduciary powers and unlimited (beneficial) non-fiduciary powers.
If a beneficiary were granted dispositive powers from which he is entitled to benefit, eg. a power of revocation or a general power of appointment, then, subject to the terms of the trust and statute, there may be a presumption that those powers are unlimited non-fiduciary powers.
Holders of unlimited non-fiduciary powers are not subject to a duty to exercise the powers for a proper purpose. These types of powers generally may be exercised by the power-holder in his or her selfish interests without regard to the interests of other beneficiaries, provided that the exercise is otherwise legal. In the case of TMSF v Merrill Lynch, a Cayman case that reached the Privy Council in the United Kingdom (Cayman’s final court of appeal), held that a settlor’s power of revocation was tantamount to property of the settlor and therefore the settlor’s bankruptcy receiver could be ordered to delegate the power to the bankruptcy receiver to enable distributions of the trust property to the settlor’s creditors.
Given Chapman v Chapman It may be unlikely that a court would strike down a provision in a trust deed which, for example, expressly provided that:
A beneficiary’s power to appoint or remove trustees shall be an unlimited (beneficial) personal power which the beneficiary may exercise for his own personal benefit without regard to the interests of other beneficiaries.
A clause of this nature would, admittedly, rarely be appropriate. It is suggested that, upon application, a court may need to consider whether to exercise its inherent jurisdiction over the administration of trusts to intervene. The court may need to ask itself whether doing so would be in the interests of the beneficiaries because, for example, the exercise or non-exercise of the power was placing the proper administration of the trust (or the trust fund) at serious risk in the particular circumstances of the case. Judges are reluctant to intervene to exercise this wide jurisdiction, and are not eager to impose their own decision simply because they may consider their approach preferable to the decision made by the power-holder. However, in the absence of the beneficiary’s dishonesty, it may be difficult to secure costs of the application from the beneficiary who held such a power.
Limited non-fiduciary powers
Where a power-holder is not a beneficiary (which the terms of the trust provide may benefit from the power), subject to the terms of the trust and any relevant statutory provisions, Lewin indicates that the powers held may be assumed to be held in a fiduciary capacity.
Subject to statute and the terms of the trust, if a beneficiary is granted the expressly non-fiduciary powers:
(i) administrative powers, including the power to amend the trust instrument or appoint investment managers or advisers;
(ii) hybrid powers such as the power to add or remove beneficiaries; or
(iii) dispositive powers that the trust deed provides that the particular beneficiary may not benefit from (eg. a beneficiary has a power special power to appoint income or capital to one or more beneficiaries other than himself),
then these may generally be construed as limited non-fiduciary powers. Categorising administrative powers as limited non-fiduciary powers as opposed to fiduciary powers may be more readily accepted where the powers are passive consent powers as opposed to positive powers.
A fiduciary power-holder’s duties generally include exercising the powers in good faith for the purpose for which they were conferred. Holders of limited non-fiduciary powers are also subject to these duties. Subject to the terms of the trust, a holder of a non-fiduciary power (limited or unlimited) may release or delegate the power and is not under a duty to account to beneficiaries for the exercise (or non-exercise) of the power. A beneficiary who holds a limited non-fiduciary power, subject to the specific terms of the power, may be entitled to take his own interests into account when exercising the power. Limited non-fiduciary powers may not ordinarily be regarded as tantamount to property of the power-holder (whether or not the power-holder is a beneficiary).
In Centre Trustees v Pabst, the protector was not a beneficiary and the trust instrument expressly provided that the particular protector’s powers were non-fiduciary. The Jersey Royal Court expressed that:
…declaring the powers vested in the Protector are not held in a fiduciary capacity would simply mean that he is not under an obligation to consider from time to time whether or not to exercise them. If he does exercise them, then they must be exercised for the benefit of one or more beneficiaries.
In the matter of an application for information about a trust the Bermuda Court of Appeal considered whether it ought to exercise its inherent supervisory powers to intervene and order disclosure of documents. The protector, had exercised his power to veto consent to the trustee’s proposed disclosure of trust accounts and other trust documents to another primary beneficiary. The trust instrument expressly provided that the protector’s power was a non-fiduciary power. The original protector was not a beneficiary and was succeeded as protector by a beneficiary who had a beneficial interest in 65 per cent of the value of the the trust fund. The application was brought by the other primary beneficiary, the brother of the protector, who the Court considered had a genuine expectation of an absolute interest in 35 per cent of a trust fund.
The Court held that:
The Protector’s power under the clause must be exercised in the interests of the Trust and of its beneficiaries, notwithstanding that the Protector owes no fiduciary duties … and notwithstanding that the Protector is one of the beneficiaries.
It is suggested that where a statutory default position or the trust instrument provides that powers to appoint or remove trustees are non-fiduciary powers, the powers will at the very least be construed as a limited non-fiduciary powers. A court which held such powers as being fiduciary in those circumstances would appear to be overriding statute and the express terms of the trust. Courts do not have such powers. However, courts do have the power to exercise their inherent supervisory jurisdiction over the administration of trusts if the interests of the beneficiaries require it. As mentioned above, this is a power that is exercised sparingly by the courts.
In a number of cases, there may a minimal practical distinction between the duties of a holder of a limited fiduciary and limited non-fiduciary power, all other things being equal, in circumstances where a holder of the non-fiduciary power is determined to be under a duty to exercise the power in the best interests of the beneficiaries. The distinction may be that, subject to the terms of the trust, the holder of the fiduciary power is under a duty to consider from time to time whether or not to exercise the power, is under a duty to account for its exercise of the power and may not release or delegate the power. However, what if the power is merely a power to provide consent? In those cases, the only time that the power -holder can meaningfully consider exercising the power is when approached for consent. The distinction then may have limited practical impact many cases notwithstanding that the holder of limited fiduciary power is subject to the self-dealing rules, may not release or delegate the powers unless the trust deed authorises it to do so.
· does not refer to a distinction between limited fiduciary powers and limited non fiduciary powers;
· categorises powers as beneficial, limited or fiduciary and acknowledges that fiduciary powers can be qualified by the terms of the trust.
· describes limited powers as powers which are intended to benefit a person other than the power-holder and that a power-holder is an object of a power then the power is a beneficial power;
· indicates the holder of a limited power is subject to a duty to exercise the power for a proper purpose; and
· considers that a fiduciary power is a form of limited power.
It is difficult and often dangerous to make generalisations when categorising powers in circumstances where the terms of the trust, the nature of the particular power and statutory default provisions all require careful consideration and may vary in each case. Ultimately, the content of the duties of a holder of a particular power is primarily a matter for careful construction of the trust instrument. Whether a power is fiduciary or non-fiduciary (which themselves can be relatively vague concepts) may only provide a working categorisation to facilitate discussion or a more detailed analysis.
With these important caveats, as a starting point, it may be that, subject to the terms of the trust, statutory default provisions and the nature of the particular power, for our purposes powers may be divided into four main categories.
1) Fiduciary powers, being powers which are held by a fiduciary, or are construed to be fiduciary taking into account the considerations discussed above. In circumstances where a trust deed is silent, powers held by non-beneficiaries may generally be regarded as fiduciary unless statute provides otherwise. Key distinguishing features of fiduciary powers from non-fiduciary powers is that holders of fiduciary powers are under duties to consider the exercise of their powers from time to time and account and may not release or delegate their powers.
2) Limited fiduciary powers include powers held by a beneficiary where the trust instrument is construed as limiting the fiduciary duties imposed on the power-holder in some way. For example, as a result of the trust instrument expressly permitting the beneficiary to benefit from the exercise of the powers notwithstanding the fiduciary nature of the power. In practice, these types of powers may more likely be administrative and hybrid powers as opposed to dispositive powers. A limited fiduciary power also may include fiduciary powers to consent to the trustee’s exercise of a power, irrespective of whether the power is held by a beneficiary. Beneficiaries who are holders of limited fiduciary powers may, on occasion, experience considerable challenges in relation to their management of conflicts of interests.
3) Limited non-fiduciary powers are generally those powers where the power-holder is subject to a duty to exercise the power in good faith and for the purpose for which the power was conferred but the power holder is not (in contrast to holder of a fiduciary power) under a duty to consider the exercise of the power from time to time or to account for their exercise of the power. Further, subject to the terms of the trust, the power-holder may release or delegate the power. In many cases, the trust instruments may implicitly or expressly provide that the purpose of the power should be exercise to benefit one or more of the beneficiaries to, for example, facilitate the efficient administration of the trust. It is submitted that a beneficiary who holds such power may benefit from its exercise provided he fulfils the above duties. However, such beneficiary power-holder will nevertheless, on occasion have considerable challenges in relation to the management of his or her conflicts of interests. Like fiduciary powers, these powers are not tantamount to property and generally are not exercisable by a power holder’s bankruptcy receiver for the benefit of the power-holders’ creditors. These powers are sometimes included in references to personal powers but increasingly such a reference may be a misnomer given the duties outlined above. It is submitted in practice there might be a wide range of circumstances where there may be limited practical difference as a consequences of a power being categorised as limited non-fiduciary powers or limited fiduciary powers in circumstances where it is determined that the power-holder is required to act in the best interests of the beneficiaries as a whole. In any case, it is the precise terms of the power that is of primary importance.
4) Unlimited (beneficial) non-fiduciary powers being powers held by beneficiaries; which are tantamount to personal property; and may be exercised for any legal purpose, free from the duties to which the above power-holders are subject. Such powers typically include a power of revocation and a general power of appointment. Subject to the terms of the trust, these powers may be released or delegated by the power-holder and may be delegate to a power-holder’s bankruptcy receiver. These are true personal powers.