Add to this the possibility that the settlor may, on his or her death, have chosen to ask the trustees to pass some of the trust assets to a person (such as a second wife) that the next generation do not like, and you have a combustible mix that has the capacity to spill over into litigation involving significant sums across multiple jurisdictions in which different assets and elements of the trust structure are situated.
In light of this, it is unsurprising that the case law of offshore jurisdictions has been littered over the past decade with litigation spawned by second generation beneficiaries seeking to:
- question trustee decisions;
- find out more about the structures into which assets may have been placed; and
- recover assets from those into whose hands they have been passed.
According to Jonathan Hilliard QC, the critical questions for a party seeking to attack an offshore structure are:
(1) how to obtain sufficient information about the structure in order to attack it;
(2) the grounds upon which to attack the structure;
(3) the jurisdiction(s) in which to attack;
(4) how to enforce any award; and
(5) given the complexities of these issues, how to fund any attack when the funds are held in the trust structure.
Tricky answers
These questions are all important but can, in practice, be very difficult to answer.
Question (1) has spawned a fascinating body of case law that is testament to the creativity of those attacking offshore structures.
Most recently, in the Dawson-Damer v Taylor Wessing [2017] 1 WLR 3255 litigation, the data protection legislation in England was used to obtain information about the offshore trust.
Similarly, litigants have increasingly sought to rely on documents gleaned from information leaks relating to offshore jurisdictions such as the Panama Papers incident.
Question (2) encompasses – to give but a few examples – the issue of the flexibility allowed to trustees and other officers in exercising their discretions (see, for example, Pitt v Holt [2013] 2 AC 108), the grounds on which trusts can be held to be shams, and the ability under foreign laws to recover on death assets that have found their way into trusts.
Question (3) leads one to consider the different pieces of 'firewall' legislation in the offshore jurisdictions, that serve as an important part of the financial products that they offer, and the potential vulnerabilities within such statutes.
Question (4) is generally a conflict of laws question, requiring an understanding of private international law and how this is modified by the special legislation on the topic in the jurisdiction(s) in question.
