The Jersey Law of Trusts 4th Edition by Harriet Brown Book Review by Edward Buckland
Written by on 16/01/2014 16:47
The Jersey Law of Trusts (Fourth edition) by Harriet Brown
Book review: Edward Buckland , November 2013
Edward Buckland TEP is Managing Director and Global Head of Fiduciary in the Wealth
Advisory Division at Barclays, and is a member of the STEP Board and Council
It is said that good things come to those who wait, and, as almost 20 years have passed since the previous edition of The Jersey Law of Trusts, the wait for this particular work has been considerable.
Since the last edition there have been four amendments to the Trusts (Jersey) Law 1984 (Jersey Trust Law), as well as countless cases. Indeed, it is likely that, of all trust jurisdictions, Jersey has the most active case book, and this is reflected in the case index, which refers to hundreds of cases decided since the previous edition.
A simple update of what had gone before would have been extremely welcome; however, Harriet Brown has not contented herself with such a task, arduous though that would have been. She has definitely placed her imprint upon the edition while, as she acknowledges, building on the strong foundations left by Messrs Matthews and Sowden.
As an example, she has reinstated the chapter on the Jersey legal system. Were this to be a book purely for Jersey practitioners that might seem a little otiose; however, the Jersey Trust Law has resonance far beyond the island as it is used as the governing law of many instruments set up by settlors and involving beneficiaries from a huge range of jurisdictions. Thus, many practitioners across the globe will be glad to have at their fingertips a comprehensive study of the Jersey Trust Law. For them, the context within which that law sits will be of tremendous benefit.
Moreover, the author has extended the references to Jersey case law and removed many of the historical references to English precedents. This has been done to point out that the Jersey Trust Law will be interpreted according to Jersey law principles where, of course, Jersey case law will be the most relevant. The author also takes the opportunity to update the book to cover those four amendments referred to above.
So much for the changes; what about the meat of the book?
Wisely, the author has decided to keep the basic framework set out by Matthews and Sowden. That means the Jersey Trust Law is analysed under helpful and logical headings such as ‘Beneficiaries’, ‘Trustees’ and ‘Powers and Duties of Trustees’. It also means every article of the Jersey Trust Law is explored using a combination of the author’s own analysis and reference to appropriate case law.
An example of the pace of change in Jersey law is the excellent chapter 14, which deals with remedying deficiencies in trust instruments and trustees’ actions. This chapter has a lengthy
discursus upon the ‘rule in Hastings-Bass’, which, perhaps, is more accurately described as
the Mettoy principle. Interesting though that is, already it is almost of historical application only, as on 16 July this year the States of Jersey approved the Trusts (Amendment No 5) (Jersey) Law 2013, which enacted the Hastings-Bass principle into the Jersey Trust Law. While that law is not yet in force, it is anticipated it will be soon, at which point much of the latter half of chapter 14 will be overtaken.
When one adds to this the knowledge that amendment number seven is already actively under discussion, which will probably address the possibility of giving the court the power to vary a trust a là s47 of the Bermuda Trustee Act 1975, and considers the p