To Exclude, Or Not To Exclude, That Is The Question

Article 10(2) of the Trusts (Jersey) Law 1984, as amended (the Trust Law) states that "The terms of a trust may provide for the addition of a person as a beneficiary or the exclusion of a beneficiary from benefit" and most trust instruments will indeed contain such provisions in one form or another.

Alongside the power to add beneficiaries, the power to exclude is a vital weapon in the armoury of trustees, giving them flexibility to consider future developments and to address potential mishaps.

Frequently the power is exercised because it is in the fiscal interests of the beneficiary, but there are occasions when it is not in the interests of that beneficiary to be excluded or against that beneficiary's wishes.