B v B – Discretionary Trusts

Written by admin

November 30, 2010

The recently reported case of B v B concerned a relationship which lasted 10 years with a 6 year marriage. There were two young children of the marriage.

The husband had assets of £6 million, all inherited. The issue before the Court was the extent to which assets of £14.5 million held within a Jersey discretionary trust (where the husband was the settler) were financial resources available to the husband. The beneficiaries under the trust were the husband, members of his family and various charitable foundations.

The Court invited the trustees to provide as much information as possible regarding the trust but they chose to say silent and provide only limited material. The wife was seeking a lump sum of £6.5 million. The husband offered £3 million, having already paid £134,000 towards the wife’s legal costs with £323,000 remaining outstanding in respect of those legal costs.

The Court awarded the wife £4.5 million and ordered the husband to pay a further contribution of £275,000 towards legal costs. The Court stated that it was necessary to carry out a 2-stage exercise in respect of trust assets. Firstly, it was necessary to decide whether trust assets were resources in relation to which a party had an interest or potential interest. Secondly, it was necessary to decide whether the spouse (in this case, the husband) had access to the trust funds in the sense that if he were likely to make a request to the trustees, whether they were likely to provide him with funds for the purposes of meeting an award to his wife and his own needs (without their being severe prejudice to the other beneficiaries).

The Court in this case held that a genuine request to the trustees for an award would be met by a favourable response. The Court also found that in view of the length of the relationship and the origin of the wealth, the wife’s needs were more important than sharing which was less important in view of how the assets were derived.

The Court also found that it was justified for a substantial costs order to be made against the husband on the basis of his litigation conduct.

If you need legal advice regarding a financial settlement which involves trusts, please telephone our specialist family law solicitors on 01992 892214 for an appointment.

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