Offshore Litigation

Blog

Offshore Litigation

Contributors

Jonathan Addo
Jonathan Addo
  • Jonathan Addo

  • Partner
  • British Virgin Islands
Jeremy Child
Jeremy Child
  • Jeremy Child

  • Partner
  • London
Julie Engwirda
Julie Engwirda
  • Julie Engwirda

  • Partner
  • Hong Kong
Peter Ferrer
Peter Ferrer
  • Peter Ferrer

  • Partner
  • British Virgin Islands
Claire Goldstein
Claire Goldstein
  • Claire Goldstein

  • Partner
  • British Virgin Islands
Hazel-Ann Hannaway
Hazel-Ann Hannaway
  • Hazel-Ann Hannaway

  • Partner
  • British Virgin Islands
Nick Hoffman
Nick Hoffman
  • Nick Hoffman

  • Partner
  • Cayman Islands
Andrew Johnstone
Andrew Johnstone
  • Andrew Johnstone

  • Partner
  • Hong Kong
Paula Kay
Paula Kay
  • Paula Kay

  • Partner
  • Hong Kong
Phillip Kite
Phillip Kite
  • Phillip Kite

  • Partner
  • London
Vicky Lord
Vicky Lord
  • Vicky Lord

  • Partner
  • Shanghai
Paul Madden
Paul Madden
  • Paul Madden

  • Partner
  • Cayman Islands
Henry Mander
Henry Mander
  • Henry Mander

  • Partner
  • Cayman Islands
Ian Mann
Ian Mann
  • Ian Mann

  • Partner
  • Hong Kong
William Peake
William Peake
  • William Peake

  • Partner
  • London
Lorinda Peasland
Lorinda Peasland
  • Lorinda Peasland

  • Consultant
  • Hong Kong
Chai Ridgers
Chai Ridgers
  • Chai Ridgers

  • Partner
  • Hong Kong
Nicola Roberts
Nicola Roberts
  • Nicola Roberts

  • Partner
  • Hong Kong
  • Singapore
Paul Smith
Paul Smith
  • Paul Smith

  • Partner
  • Cayman Islands
Andrew Thorp
Andrew Thorp
  • Andrew Thorp

  • Partner
  • British Virgin Islands
Jessica Williams
Jessica Williams
  • Jessica Williams

  • Partner
  • Cayman Islands
Jayson Wood
Jayson Wood
  • Jayson Wood

  • Partner
  • Cayman Islands

Where there's a will, there may be a life time trust!

In a recent decision of the English High Court (Clarke-Sullivan v Clarke-Sullivan), which will be of interest and relevance in Cayman and elsewhere, the Court was tasked with construing a will and its effect in circumstances where the deceased was very sadly killed in an avalanche while skiing. The Will provided that the residuary estate was to go to a New Zealand discretionary trust which had subsequently been wound up.

The brief background was that the deceased and her husband as settlors, created the trust in 2014 which was established to hold property intended to be purchased in NZ, but that purchase did not go ahead. In 2015, the deceased executed the will, which directed her husband as executor to pay her net residuary estate to the Trust (the Clause). In 2016, the trust was wound up on advice from a NZ lawyer that its existence adversely affected their non-resident tax status in NZ. The couple had lived in London from 2006 to 2010, in Dubai from 2010 to 2015 and then in London from 2015 until the deceased’s death in 2019. The issue as to the effect of the Clause arose when the deceased’s husband applied under s.48 of the Administration of Justice Act 1985 (power of High Court to authorise action taken in reliance on counsel’s opinion) in respect of the will.

The case is a good example of the court’s approach to the construction of a will of a foreign domiciled testator and that the question of determining domicile is a question of mixed fact and law. In this case, although the deceased had made a statement that she had not been domiciled in NZ for tax purposes at the time of the will, the Court examined the various factual matters relevant to the deceased’s domicile; as well as evidence as to NZ law on the interpretation of the will.They concluded that the deceased was domiciled in NZ at the time of executing the will and therefore NZ law was the applicable law to the construction of the will.) On the proper construction of the will, applying NZ law, the deceased’s estate was held on testamentary trust to be distributed in accordance with the directions set out in the will and incorporating the terms of the trust, even though the trust had been wound up.

The case is an important reminder that statements made, for instance in a person’s will, in relation to a person’s domicile will not be definitive and that as part of a person’s succession planning they should take all necessary steps to ensure that any such statement is reflective of the factual position.

Where there's a will, there may be a life time trust!