- Interpretation in contract and trusts–foreign law concept with no exact English equivalent—trust protectors—new judgment on their appointment and powers (PTNZ v AS)
- What are the practical implications of this case?
- What was the background?
- Issues before the Master
- What did the Master decide?
- The validity issue
- The role issue
- Case details
Private Client analysis: This case illustrates the transliteration of foreign law concepts and their analysis and categorisation within English law concepts. It arises in the context of high value international trusts, but the thought processes involved are of general application. It further illustrates the principles applicable to the interpretation of trust instruments governed by English law, and of the breadth of the concept of a personal representative. The relevant clause of the trust deed conferred a power of appointment of a new protector on the ‘executor, administrator or personal representative’ of the deceased protector. Master Shuman held that the power of appointment could be exercised by persons who did not hold a grant of representation in England, as long as their role and powers under the relevant foreign law were relevantly equivalent to those of an executor, administrator or personal representative appointed by an English court. The deceased protector’s ‘seul héritiers de droit’, under Monegasque law, loosely translated as ‘heirs’, therefore had the power to appoint a new protector. Master Shuman further found that the new protector’s consent was required in relation to various restructuring decisions proposed by the trustee, holding that the protectors’ powers should not be limited to a power of review, but rather exercised jointly with the trustee. Written by Gregory Pipe and Ciar McAndrew, barristers, at Monckton Chambers, who appeared for the second, third and fourth defendants, being the seul héritiers de droit.
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