Fereydoon Mossanen and others v Julius Baer Trust Co (Singapore) Ltd [2026] SGHC 190

Introduction

HC/SUM 932/2026 (“SUM 932”) is an application by the claimants in HC/OC 848/2025 (“OC 848”) for summary determination of nine issues listed in Annex A to SUM 932, pursuant to O 9 r 19 and/or O 9 r 25(3) of the Rules of Court 2021 (“ROC 2021”). The issues (reproduced at [61] below) revolve around the terms of various deeds relating to a family trust established by the first claimant. Certain questions of law engaged by these issues do not appear, so far as I am aware, to have been addressed hitherto in Singapore case law.

Facts

The parties

The first claimant, Dr Fereydoon Mossanen (“Settlor”), is the settlor of a trust known as The Moss Trust (Singapore) (“Moss Trust”). The Settlor was married to Mrs Madlen Mossanen (“Wife”), who passed away on 10 November 2024.

The second and third claimants, Mr Amir Mansour Mossanen (“Mr Amir Mossanen”) and Ms Natasha Rahban, are the Settlor and the Wife’s children (together, “Children”).

On the claimants’ case, the fourth claimant, Mr Linus Georg Ernst Jaeggi (“Mr Jaeggi”), is one of two current protectors of the Moss Trust and the current Chairman of the Committee of Trust Protectors of the Moss Trust comprising himself and the other protector, Mr Maurice Benezra (“Mr Benezra”).

The defendant, Julius Baer Trust Company (Singapore) Limited (“JBTC”), is the current trustee of the Moss Trust.

The Original Trust Deed

The Moss Trust was established under the laws of Singapore by way of a trust deed dated 20 March 2015 (“Original Trust Deed”) executed by the Settlor and the original trustee of the Moss Trust, EFG Wealth Solutions (Singapore) Limited (“EFG Wealth”). The Original Trust Deed was governed by Singapore law (cl 3.1).

The Original Trust Deed stipulated that the beneficiaries of the Moss Trust were the Settlor, the Wife, the Children and any lawful issue of the Settlor (cl 1.1 and the Second Schedule). There is no contention that the Settlor has any lawful issue apart from the Children.

The Original Trust Deed provided for (a) the trust fund to be applied in the manner stipulated for the benefit of the Settlor and the Wife during the Settlor’s lifetime (cl 4.1(i)); (b) the trust fund to be applied in the manner stipulated for the Wife’s benefit upon the Settlor’s death (cl 4.3); and (c) the trust fund to be distributed in the manner stipulated to the Children and their issue after both the deaths of the Settlor and the Wife (cll 4.3 and 4.4).

The Original Trust Deed also provided that the Moss Trust was revocable and amendable by the Settlor within specified parameters, and that upon the Settlor’s death, no one would hold any power of revocation or amendment (cl 3.2).

The Original Trust Deed further provided for the constitution of a Committee of Trust Protectors (“Committee”) to provide advice to the trustee, and for the appointment of the Settlor as the first Chairman of the Committee (cll 1.9 and 9). Aside from the Settlor, no other protector/Committee member was appointed at the time.

The 2016 Trust Deed

JBTC replaced EFG Wealth as the trustee of the Moss Trust with effect from 10 November 2016.

On or around 10 November 2016, the Settlor and JBTC executed an “Amended and Restated Deed of Trust” bearing that date (“2016 Trust Deed”).

The provisions in the Original Trust Deed for distributions to the Settlor, the Wife and the Children (see [8] above) were materially retained in the 2016 Trust Deed (cll 4.1, 4.3 and 4.4). The list of beneficiaries also remained the same (cl 1.1 and the Second Schedule).

Clause 3.2 of the 2016 Trust Deed also continued to vest in the Settlor the power to revoke the Moss Trust and to amend its terms.

The provisions relating to the Committee also remained broadly similar. Clauses 9.2 and 9.3 of the 2016 Trust Deed provided for the appointment of the Chairman and members of the Committee in the following terms:

The 2016 Appointment

On or around 10 November 2016, the Settlor executed an instrument titled “Appointment of Additional Initial Members of the Committe[e] of Trust Protectors and Appointment of Successor Members and Chairmen of the Committee of Trust Protectors of the Moss Trust (Singapore)” and bearing that date (“2016 Appointment”). Under the 2016 Appointment, the Settlor “appoint[ed] [the Wife] as the successor Chairman of the Committee of Trust Protectors, but she shall serve only after the death, resignation, or incapacity of [the Settlor]” [emphasis added].

The 2017 Amendment

On 4 April 2017, the Settlor and JBTC executed a “Deed of Renunciation and Amendment” (“2017 Amendment”). I highlight the following amendments to the 2016 Trust Deed made by the 2017 Amendment.

Clause 3.2 of the 2016 Trust Deed was amended to provide, inter alia, that (a) the Moss Trust was irrevocable; (b) the Moss Trust was amendable by the Wife (instead of the Settlor) within specified parameters; and (c) after both the deaths of the Settlor and the Wife, the Moss Trust was amendable by the trustee with the prior or simultaneous consent of the protector within specified parameters (cl 3.3).

The Second Schedule to the 2016 Trust Deed was amended to remove the Settlor as a beneficiary of the Moss Trust (cl 3.6). In a similar vein, cl 4.1 of the 2016 Trust Deed was amended to provide that, during the Settlor’s lifetime, the trust fund would be applied in the manner stipulated for the benefit of the Wife only (cl 3.4).

The 2019 Declination

On 3 January 2019, the Settlor forwarded to JBTC a communication from the Wife addressed to the “Trustees and Protector” expressing her objections to receiving any powers under the Moss Trust and her view that it was “better to have [JBTC] acting”.

On 14 August 2019, the Wife executed an instrument titled “Declination to Accept Power to Amend or to Serve” (“2019 Declination”). Under the 2019 Declination, the Wife declared that (a) she declined and confirmed her prior declination to accept any and all power to amend the terms of the Moss Trust; (b) she had never exercised or purported to exercise any power to amend the Moss Trust; and (c) she declined to serve in any capacity on the Committee. It was common ground between the parties that the 2019 Declination was effective as a refusal by the Wife to accept the power of amendment of the Moss Trust.

The 2019 Modification

After the Wife executed the 2019 Declination, the Settlor, the Wife and JBTC executed a deed titled “Modification of Deed of Renunciation and Amendment and Amended and Restated Deed of Trust” dated 14 August 2019 (“2019 Modification”).

Recital (G) in the 2019 Modification stated:

Clause 3 of the 2019 Modification stated that the 2017 Amendment would be modified such that, inter alia, the amended cl 3.2(ii) of the 2016 Trust Deed would provide for the Moss Trust to be amendable by the trustee with the prior or simultaneous written consent of the protector(s):

In other words, the 2019 Modification sought to confer the power of amendment of the terms of the Moss Trust on JBTC (instead of the Wife) with effect from 14 August 2019 (ie, the date of execution of the 2019 Modification).

The 2019 Modification (cl 3) also stated that the 2016 Trust Deed would be modified, inter alia, as follows.

In respect of distributions from the trust fund:

(a) A new cl 4.3(iii) of the 2016 Trust Deed was added to address the treatment of “trophy residence[s]” that were part of the trust fund.

(b) A new cl 4.3(v) of the 2016 Trust Deed was added, which provided for a stipulated distribution in two equal shares to the trustee of the Moss Trust Amir (“Amir Trust”) and the trustee of the Moss Trust Nat (“Nat Trust”) (these being trusts set up for the benefit of the respective Children ) after the Wife’s death and whether or not the Settlor was then living.

These clauses appeared in similar terms in the 2024 Trust Deed (defined at [36] below) (see [37] below).

In respect of the appointment of Committee members, cl 9.2 of the 2016 Trust Deed was amended to read:

Clause 4 of the 2019 Modification stated: “[JBTC] hereby acknowledges the modifications set forth herein”.

The 2019 Appointment

On 13 November 2019, the Settlor, JBTC, Mr Jaeggi and Mr Benezra executed a “Deed of Appointment and Retirement of Protectors” (“2019 Appointment”).

Recital (A) in the 2019 Appointment stated that the 2019 Appointment was supplemental to the Original Trust Deed, the “Deed of Acceptance of Resignation or Removal, and Appointment of New Trustee” dated 10 November 2016 by which JBTC was appointed as the trustee of the Moss Trust, the 2016 Trust Deed, the 2016 Appointment, the 2017 Amendment, the 2019 Declination and the 2019 Modification, all of which were collectively referred to as the “Trust”.

Recital (C) in the 2019 Appointment referred to “Clause 9.2 of the Trust” and described that provision in the terms of the amended cl 9.2 of the 2016 Trust Deed as set out in the 2019 Modification (see [27] above).

Recital (F) in the 2019 Appointment stated that “[p]ursuant to Clause 9.2”, the Settlor wished to appoint Mr Jaeggi and Mr Benezra as Committee members and that they wished to accept the appointment.

Clause 3 of the 2019 Appointment stated the Settlor’s appointment of Mr Jaeggi and Mr Benezra in the following terms:

The 2019 Amendment

On 13 November 2019, the Settlor, JBTC, Mr Jaeggi and Mr Benezra executed a “Second Deed of Amendment to The Moss Trust (Singapore)” (“2019 Amendment”).

The 2020 Trust Deed

On 22 January 2020, JBTC, Mr Jaeggi and Mr Benezra executed a “Deed of Amendment and Restatement” (“2020 Trust Deed”), which consolidated all the amendments effected by the 2017 Amendment, 2019 Modification and 2019 Amendment.

The 2024 Trust Deed

On 5 March 2024, JBTC, Mr Jaeggi and Mr Benezra executed a “Second Deed of Amendment and Restatement”, which amended the Moss Trust by restating it in its entirety as set out in the Appendix thereto (“2024 Appendix”). On 15 August 2024, JBTC, Mr Jaeggi and Mr Benezra executed a “Deed of Amendment to Second Deed of Amendment and Restatement” (“2024 Amendment”), which amended a term of the Moss Trust relating to tax provisions. I will refer to the terms in the 2024 Appendix as amended by the 2024 Amendment as comprising the “2024 Trust Deed”.

Clause 4.3 of the 2024 Trust Deed provided for distributions to the Wife after the Settlor’s death (cll 4.3(i) to 4.3(iv)) and for distributions upon the Wife’s death (cll 4.3(iii) and 4.3(v)):

The “Trust Fund” comprised (a) the property listed in the First Schedule (viz, US$1,000) and Fifth Schedule (viz, the shares set out at [40] below) to the 2024 Trust Deed; (b) all further or additional property added by way of further trust, testamentary bequest, accumulation of income, capital accretion or otherwise; and (c) all property from time to time representing the same respectively (cl 1.16).

Clause 3.2(ii) of the 2024 Trust Deed contained a provision authorising the protectors to “resolve” in their “sole and absolute discretion” “any and all conflicts and ambiguities that might arise in the administration and interpretation” of the terms of the Moss Trust (“Protector Resolution Clause”):

Assets of the Moss Trust

At the time of the Wife’s death, the assets of the Moss Trust comprised US$1,000 in cash and shares in the following companies incorporated in the British Virgin Islands or the Cayman Islands (“Investment Companies”):

In turn, the Investment Companies held the following assets:

Background to the dispute

I briefly sketch the origins of the parties’ dispute. The claimants and JBTC have levied numerous allegations against each other which, at this stage of the proceedings, are unnecessary to elaborate on and unsuitable to delve into.

After the Wife’s death on 10 November 2024, the parties engaged in discussions to transfer all the trust assets held by the Moss Trust to Fiduciary Trust International of Delaware (“FTID”), which is the trustee of the Amir Trust and the Nat Trust (together, “Delaware Trusts”).

In a letter dated 22 November 2024 from JBTC addressed to Mr Jaeggi and Mr Benezra “as the Protector Committee of the Moss Trust (Singapore)” and copied to the Settlor and the Children, JBTC informed the claimants of its view that, because of certain transactions which JBTC undertook and/or caused to be undertaken in 2020 (“2020 transactions”), the transfer of the shares of the UK Property Investment Companies to FTID would incur UK tax liability of £4,483,138.44 for the Moss Trust. JBTC added that it would take advice on “whether there may be alternative ways to distribute the trust’s assets to the Delaware Trusts other than a transfer of the shares in Albert Property, Chameleon and Novacore, for example a transfer of the UK properties”.

According to the Settlor, JBTC’s letter of 22 November 2024 gave him the impression that JBTC knew that it had made a serious mistake in effecting the 2020 transactions and was trying to find ways to avoid the tax consequences of that mistake. On its part, JBTC averred that the 2020 transactions had been entered into on the directions of the Settlor, Mr Jaeggi and Mr Benezra.

In the event, by an e-mail sent to, inter alia, the Settlor, Mr Amir Mossanen, Mr Jaeggi and Mr Benezra on 17 December 2024, JBTC’s external legal counsel, one Ms Beatrice Puoti (“Ms Puoti”) of Stephenson Harwood LLP, suggested that the real estate properties held by the UK Property Investment Companies be transferred in specie to the Delaware Trusts.

On 6 January 2025, one Mr Martyn Carré (“Mr Carré”), holding the post of “Director” at JBTC, sent an e-mail to Mr Jaeggi and Mr Benezra (with, inter alia, the Settlor, Mr Amir Mossanen and Ms Puoti in copy), stating, inter alia:

On 9 January 2025, Mr Carré followed up with another e-mail to Mr Jaeggi and Mr Benezra (with, inter alia, the Settlor, Mr Amir Mossanen and Ms Puoti in copy), stating, inter alia:

By a letter dated 28 January 2025 from JBTC to FTID, JBTC then asserted that only “trophy residences” referred to in cl 4.3(iii) of the 2024 Trust Deed were to be transferred (ie, in specie) to FTID under cl 4.3(v) of the 2024 Trust Deed after the Wife’s death but during the Settlor’s lifetime.

On 28 January 2025, having seen JBTC’s letter to FTID of the same date, Mr Jaeggi sent an e-mail to JBTC objecting to JBTC’s proposal to transfer the real estate properties in specie to FTID. Mr Jaeggi stated that his understanding was that cl 4.3(v) of the 2024 Trust Deed provided for “all funds of the trust, which include[d] all companies” to be “transferred in total”, and that there was no provision for “the properties … to be separated from the companies”.

JBTC then obtained a legal opinion from an English barrister dated 8 May 2025 (“Opinion”). The Opinion was rendered according to English law. Among other things, the Opinion conveyed, in gist, that:

(a) It was uncertain whether anyone had the power to amend the terms of the Moss Trust after the 2017 Amendment, with the result that it was uncertain whether the present terms of the Moss Trust were those set out in the 2024 Trust Deed or in the 2016 Trust Deed as amended by the 2017 Amendment.

(b) It was uncertain whether cl 4.3(v) of the 2024 Trust Deed required JBTC to transfer the real estate properties held by the UK Property Investment Companies and the US Property Investment Companies (together, “Property Investment Companies”) in specie to the trustee of the Delaware Trusts (as opposed to transferring the shares in the Property Investment Companies to the trustee of the Delaware Trusts).

(c) It was uncertain whether the Protector Resolution Clause in cl 3.2(ii) of the 2024 Trust Deed was valid and/or enforceable.

According to the Settlor, he was surprised that the Opinion focused on the validity of the trust deeds of the Moss Trust as “[a]t that point in time, there was simply nothing to suggest that there was anything impinging on the validity of the Trust Deeds, the terms of which had been acted on and abided by all parties concerned”. He believed that JBTC had procured the Opinion to “cast doubt on the operative terms of the trust in order to avoid having to transfer the shares of the [Property] Investment Companies to the [Delaware Trusts]”, and that JBTC’s “motivation” for doing so was “probably to mitigate the mistake [JBTC] had earlier made” in respect of the 2020 transactions, which would result in the Moss Trust having to pay significant tax liabilities if the shares of the UK Property Investment Companies were transferred to the Delaware Trusts (see [44] above).

On 28 August 2025, Mr Jaeggi sent a letter to JBTC (“28 Aug 2025 Letter”), in which he “formally state[d]” on behalf of Mr Benezra and himself that:

Mr Jaeggi further explained his disagreement with the arguments in the Opinion that cl 4.3(v) of the 2024 Trust Deed referred only to the distribution of “trophy properties” and not all funds. He concluded with an “appeal” to JBTC to “solve this issue in an amicable, cooperative and constructive way”.

On or around 11 September 2025, JBTC provided a document titled “Moss Trust – Note of advice on Moss Trust position”, dated 11 September 2025 and authored by Ms Puoti (“Note”) to the claimants. It was opined in the Note that:

The claimants disagreed with the contents of the Note.

Commencement of OC 848: pleaded claims and defences

On 15 October 2025, the claimants commenced OC 848 against JBTC.

The claimants claimed that JBTC had committed breaches of trust and breaches of duties “amount[ing] to dishonesty, bad faith, wilful and individual misconduct / wrongdoing, and/or gross negligence” by allegedly: (a) attempting to invalidate the 2024 Trust Deed; (b) refusing to account to the Committee; (c) refusing to abide by the Committee’s directions set out in the 28 Aug 2025 Letter; (d) continuing to disavow the 2024 Trust Deed; (e) unlawfully interfering with the Settlor’s tax returns; (f) refusing to meet the claimants’ demands to, inter alia, comply with the terms of the 2024 Trust Deed; (g) commencing, without authorisation, legal proceedings against, inter alia, the Singapore law firm which had advised JBTC on the 2019 Modification before JBTC’s execution of the same; (h) continuing to retain and seek advice from Ms Puoti; and (i) mismanaging the Moss Trust in connection with a potential sale of a UK real estate property held by Albert Property.

In advancing these claims, the claimants pleaded, inter alia, that:

(a) The 2017 Amendment contained an implied term that if the Wife declined to accept the power of amendment conferred by the 2017 Amendment, then the Settlor, the Wife and JBTC may, by mutual consent, assign the power of amendment to another party who was not the Settlor or the Wife (including JBTC itself) (“Claimants’ Implied Term”). The Settlor, the Wife and JBTC were entitled to enter into and effect the 2019 Modification pursuant to the Claimants’ Implied Term. The 2024 Trust Deed represented the latest version of the terms of the Moss Trust.

(b) Further and/or alternatively, the 2017 Amendment should be rectified to include the Claimants’ Implied Term, with the result that the 2019 Modification and all subsequent amendments to the terms of the Moss Trust (including the 2024 Trust Deed) were valid.

(c) Further and/or alternatively, JBTC was estopped by convention from denying the validity of the 2019 Modification and all subsequent amendments to the terms of the Moss Trust (including the 2024 Trust Deed).

(d) Further and/or alternatively, the court should exercise its inherent jurisdiction to sanction the 2019 Modification and all subsequent amendments to the terms of the Moss Trust (including the 2024 Trust Deed).

(e) Clause 4.3(v) of the 2024 Trust Deed required JBTC to transfer the shares of the UK Property Investment Companies (and not the underlying real estate properties in specie) to the Delaware Trusts.

(f) The Committee’s directions set out in the 28 Aug 2025 Letter were made “in the exercise of their power and/or discretion under [the Protector Resolution Clause]”, and JBTC’s refusal to comply with those directions was a breach of trust and a breach of its duties.

The reliefs sought by the claimants included:

(a) a declaration that the 2024 Trust Deed was valid, effective and enforceable;

(b) a declaration that Mr Jaeggi and Mr Benezra were validly appointed as the protectors of the Moss Trust;

(c) if it was found that the Claimants’ Implied Term did not exist and that JBTC was not estopped from denying the validity of the 2019 Modification and all subsequent amendments to the terms of the Moss Trust (including the 2024 Trust Deed), an order rectifying the 2017 Amendment to include the Claimants’ Implied Term;

(d) if it was found that the 2019 Modification and all subsequent amendments to the terms of the Moss Trust (including the 2024 Trust Deed) were invalid, an order sanctioning the 2019 Modification and all subsequent amendments to the terms of the Moss Trust (including the 2024 Trust Deed);

(e) a declaration that JBTC had and continued to have the power of amendment as provided for in the 2019 Modification, the 2019 Amendment, the 2020 Trust Deed and the 2024 Trust Deed;

(f) a declaration that cl 3.2(ii) of the 2024 Trust Deed (containing the Protector Resolution Clause) was valid and enforceable;

(g) an order that JBTC specifically perform its obligation under cl 3.2(ii) of the 2024 Trust Deed to comply with the protectors’ decision(s) in relation to any and all conflicts and ambiguities that might arise in the administration and interpretation of provisions of the Moss Trust and any and all amendments and modifications thereto; and

(h) an order that JBTC specifically perform its obligation to distribute the assets of the Moss Trust pursuant to cl 4.3(v) of the 2024 Trust Deed, viz, to divide the balance of the Trust Fund into two equal shares, with one share distributed to the Amir Trust and one share distributed to the Nat Trust.

In its Defence, JBTC denied any breach of trust or duty. JBTC pleaded, inter alia, that:

(a) The claimants’ averments set out at [58(a)]–[58(d)] above were “not admitted”.

(b) That said, JBTC had not denied the validity of the 2019 Modification and all subsequent amendments to the terms of the Moss Trust and had not taken a position on the validity of the 2024 Trust Deed.

(c) JBTC had not refused to administer the Moss Trust pursuant to the terms of the 2024 Trust Deed per se, but instead “require[d] clarification” as to the terms of the Moss Trust.

(d) JBTC had been advised to apply to court to determine “the proper meaning and effect of clause 4.3(v) of the 2024 Trust Deed”. JBTC was “ready, able and willing” to distribute the assets of the Moss Trust if required to do so by its terms.

(e) JBTC “ma[de] no admission” as to the claimants’ entitlement to the reliefs set out at [59] above, and was “ready, able and willing” to comply with the court’s determination on the claimants’ prayers for those reliefs.

The application in SUM 932

On 25 March 2026, the claimants filed SUM 932 (amended on 7 September 2026) for summary determination of the following nine issues pursuant to O 9 r 19 and/or O 9 r 25(3) of the ROC 2021:

(a) Issue 1: Did the 2017 Amendment contain the Claimants’ Implied Term?

(b) Issue 2: If the 2017 Amendment did not contain the Claimants’ Implied Term, should the 2017 Amendment be rectified to include a term with the content of the Claimants’ Implied Term?

(c) Issue 3: Did the Settlor, the Wife and JBTC validly agree by way of the 2019 Modification to assign the power of amendment to JBTC acting with the prior or simultaneous consent of the protector(s) of the Moss Trust?

(d) Issue 4: Is JBTC estopped by convention from denying the validity of the 2019 Modification and all subsequent amendments to the terms of the Moss Trust, including the 2024 Trust Deed?

(e) Issue 5: Should the court exercise its alleged inherent jurisdiction to sanction the 2019 Modification and all subsequent amendments to the terms of the Moss Trust, including the 2024 Trust Deed?

(f) Issue 6: Are the current terms of the Moss Trust set out in the 2024 Trust Deed?

(g) Issue 7: Was JBTC obliged, following the death of the Wife, to distribute the assets of the Moss Trust, being shares in the Investment Companies, in equal shares to the trustee of the Amir Trust and the trustee of the Nat Trust pursuant to cl 4.3(v) of the 2024 Trust Deed?

(h) Issue 8: Were Mr Jaeggi and Mr Benezra validly appointed as members of the Committee pursuant to the 2019 Appointment?

(i) Issue 9: Is the Protector Resolution Clause valid and enforceable for the purpose of Mr Jaeggi and Mr Benezra resolving any and all conflicts and ambiguities that might arise in the administration and interpretation of provisions within the Moss Trust concerning the distribution of trust assets?

By way of overview, the parties were in agreement that Issues 1 to 8 should be summarily determined by the court. JBTC’s position on whether Issue 9 should be summarily determined appeared somewhat more equivocal (as I explain at [172]–[173] below). Notwithstanding that, and in any event, JBTC repeatedly emphasised that it maintained a neutral stance on the merits of the issues, and was “ready, willing and able” to abide by the court’s determination of all the issues.

The law in respect of O 9 r 19(1) and O 9 r 25(3) of the ROC 2021

Order 9 r 19(1)

Order 9 r 19(1) of the ROC 2021 provides that:

Order 9 r 19 of the ROC 2021 replaced O 14 r 12 of the Rules of Court (2014 Rev Ed) (“ROC 2014”), and case law on O 14 r 12 of the ROC 2014 continues to guide the application of O 9 r 19 of the ROC 2021 (Singapore Court Practice (Jeffrey Pinsler SC, gen ed) (LexisNexis (online version), 2026) at paras 9.19.1 and 9.19.2). Order 14 r 12(1) of the ROC 2014 provided that:

Four key principles apply to O 9 r 19(1) of the ROC 2021.

First, the question for determination must involve a question of law or construction of any document. This is expressly stated in the provision.

Second, the question must be suitable for determination without a trial. This requirement (which was expressly stated in O 14 r 12(1) of the ROC 2014) is implicit in O 9 r 19(1) of the ROC 2021: by providing that the court may decide the question “without a trial or hearing on the facts”, the anterior requirement is that the question must be suitable for determination in such manner.

It follows that a question that raises disputed factual issues is unsuitable for summary determination (TMT Asia Ltd v BHP Billiton Marketing AG (Singapore Branch) [2015] 2 SLR 540 (“TMT”) at [34]). That said, in an application where (a) one party simply makes no admission of the facts pleaded by the other party (such that there is effectively no contest over those facts) and (b) the court is satisfied that the evidence adduced establishes those facts without the need for a trial, I see no reason the court cannot summarily determine the question of law or construction on the basis of those facts.

A complex question of law is not itself unsuitable for summary determination, unless it is a novel question of considerable public importance (TMT at [33] and [35]).

For completeness, I add that even where the parties have agreed for a question to be summarily determined, it remains for the court to be satisfied that it is an appropriate case to do so pursuant to O 9 r 19(1) of the ROC 2021.

Order 9 r 25(3)

The claimants also purported that their application in SUM 932 was made, “in the alternative”, pursuant to O 9 r 25(3) of the ROC 2021.

Order 9 r 25(3) of the ROC 2021 should be considered in the context of the preceding O 9 rr 25(1) and 25(2):

As is evident from the provisions, O 9 r 25 of the ROC 2021 deals with the court’s powers to give directions for the trial or hearing of an action (Singapore Rules of Court: A Practice Guide (Chua Lee Ming editor-in-chief & Paul Quan gen ed) (Academy Publishing, 2nd Ed, 2026) at para 09.089). O 9 r 25(2) empowers the court to order separate trials of the issues of liability and damages, while O 9 r 25(3) empowers the court “to decide whether one or more questions of fact may be tried before the others” [emphasis added] (Singapore Civil Procedure 2026 vol I (Cavinder Bull SC gen ed) (Sweet & Maxwell, 2026) at para 9/25/1). In my view, O 9 r 25(3) envisages the determination of the factual issue in question by trial or a hearing where witnesses will be examined. That coheres with the nature of how disputed issues of fact are determined as well as the context of the rest of O 9 r 25.

The claimants’ purported reliance on O 9 r 25(3) of the ROC 2021 is thus inapposite as what the claimants seek is “summary” determination of the issues listed in SUM 932 “on the basis of affidavit and documentary evidence” that has been placed before the court. The claimants have not asked for any issue of fact to be heard and/or decided. And, apart from a bare invocation of O 9 r 25(3) “in the alternative”, the claimants made no submissions on the legal principles applicable to the provision or how it applied in the present case. I will therefore proceed on the basis that whether the issues listed in SUM 932 should be summarily determined falls to be decided solely under O 9 r 19(1).

Issues to be determined

Two main questions arise in respect of each of the nine issues listed in SUM 932:

I will address the nine issues listed in SUM 932 in the following sequence. I will begin with Issues 1 to 6, as these are directed towards a foundational ascertainment of what the current terms of the Moss Trust are. I will then address Issues 8, 9 and 7 in that order. Issue 8 seeks to determine the validity of Mr Jaeggi and Mr Benezra’s status as protectors of the Moss Trust, and its determination logically precedes the determination of Issue 9 concerning their power as protectors. In turn, because Issue 9 essentially asks if the Protector Resolution Clause validly empowered Mr Jaeggi and Mr Benezra to determine Issue 7, it is logical to consider Issue 9 in precedence to Issue 7.

Issue 1

Issue 1 asks: Did the 2017 Amendment contain the Claimants’ Implied Term?

The claimants’ case

The claimants submitted that Issue 1 should be summarily determined. A determination on Issue 1 would go towards resolving whether the 2019 Modification and all subsequent amendments to the terms of the Moss Trust (including the 2024 Trust Deed) were valid, and that in turn would “go a long way towards resolving the parties’ disputes in OC 848” which were “almost entirely due to their differences on the applicable trust deed”. Issue 1 did not raise any dispute of fact that would bar summary determination.

The claimants submitted that the legal principles governing the implication of contractual terms in fact, as set out in Sembcorp Marine Ltd v PPL Holdings Pte Ltd [2013] 4 SLR 193 (“Sembcorp Marine”), should apply in determining Issue 1. Applying those principles, the Claimants’ Implied Term should be implied into the 2017 Amendment.

First, it was undisputed that the 2017 Amendment contained a gap in that although it purported to vest the power of amendment in the Wife, it did not provide for what should happen if the Wife declined the power of amendment. The Settlor and JBTC had assumed that the Wife would agree to accept the power of amendment and had not considered this gap when executing the 2017 Amendment.

Second, the Claimants’ Implied Term was necessary to give the 2017 Amendment business efficacy: the Settlor’s uncontradicted evidence was that the power of amendment was critical to safeguard the best interests of the beneficiaries, as such a power would provide the Moss Trust with the necessary flexibility for tax planning purposes.

Third, had it been put to the parties at the time the 2017 Amendment was prepared that the Claimants’ Implied Term existed, the parties would surely have responded “Oh, of course!”: (a) Mr Amir Mossanen’s uncontradicted evidence was that, during discussions concerning the 2019 Modification, “everyone” believed that the Settlor, the Wife and JBTC had the power to, by mutual consent, assign the power of amendment to someone else besides the Wife; (b) JBTC’s Singapore counsel had confirmed in January 2019 that the Settlor, the Wife and JBTC could jointly execute the 2019 Modification by mutual consent to vest the power of amendment in JBTC; and (c) after the Wife refused to accept the power of amendment by way of the 2019 Declination, the parties proceeded to act as if the Claimants’ Implied Term existed, in that the Settlor, the Wife and JBTC jointly executed the 2019 Modification to vest the power of amendment in JBTC instead.

In oral submissions, the claimants’ counsel accepted that instead of the formulation per the Claimants’ Implied Term, it was “possible” on an “intellectual level” for the implied term to be construed as being that, in the event the Wife declined to accept the power of amendment, the Settlor would have the power to amend the terms of the Moss Trust to confer the power of amendment on someone other than the Wife (including JBTC).

JBTC’s case

JBTC submitted that it was well-established under English law that the doctrine of implication of terms (by law or in fact) applied to trust deeds. While this point “[did] not appear to have been resolved [in] Singapore jurisprudence”, Singapore law “[did] not prohibit” the application of contractual principles on the implication of terms (set out in Sembcorp Marine) in respect of trust deeds and instruments.

On whether there was a gap in the 2017 Amendment, if the court accepted that it was always the Settlor’s intention that the terms of the Moss Trust could be amended and that he did not consider the possibility that the Wife would decline the power of amendment, it “may be argued” that the 2017 Amendment had an unintended gap in that there was no provision for what would happen if the Wife declined to accept the power of amendment. This “must be considered in the context that many trusts do not contain powers of amendment, and this does not make them unworkable”. It “may also be noted” that the 2017 Amendment conferred a power of amendment on the Wife during her lifetime and a subsequent power of amendment on JBTC after the lifetime of the Settlor and the Wife, which meant that there was a potential period in which the Moss Trust could not be amended (viz, for the remainder of the Settlor’s lifetime if the Wife died before the Settlor).

On whether it was necessary to imply a term in order to give the Moss Trust efficacy, the Moss Trust would be much less flexible without a power of amendment, and it was a matter for the court if this sufficed to render implication of a term necessary.

On the specific term to be implied, there was “uncertainty”. It could be argued that if the Wife declined the power of amendment, the power of amendment would revert to the Settlor. Or, that if the Wife declined the power of amendment, she would be empowered to nominate someone else to exercise the power of amendment. That said, the test for implication of terms was an objective one for the court to apply, and JBTC would abide by the court’s decision in this respect.

Decision

Issue 1 should be summarily determined

The relevant law: implication of terms into a trust deed

I turn then to the determination of Issue 1.

The implication of contractual terms in fact is the process by which the court fills a gap in a contract to give effect to the parties’ presumed intentions (Sembcorp Marine at [29]). The court takes a three-step approach to determine whether a term should be implied:

(a) First, the court ascertains how the gap in the contract arose (Sembcorp Marine at [101(a)]). Implication will be considered only if the gap is a “true” gap in the sense that the parties did not contemplate the issue at all and so left a gap (Sembcorp Marine at [94]–[96] and [101(a)]).

(b) Second, the court considers whether it is necessary in the business or commercial sense to imply a term in order to give the contract efficacy (Sembcorp Marine at [101(b)]).

(c) Third, the court considers the specific term to be implied. This must be one which the parties, having regard to the need for business efficacy, would have responded “Oh, of course!” had the proposed term been put to them at the time of the contract (Sembcorp Marine at [101(c)]).

In respect of the second step, the Court of Appeal in Sembcorp Marine explained that the business efficacy test is used in the context of commercial transactions to identify gaps in the contract that need to be filled for it to be workable, as it is assumed that commercial parties are rational, and as such, seek business efficacy in their transaction (at [84], [85] and [99]). As Bowen LJ (as he then was) put it in The Moorcock (1889) 14 PD 64 (“The Moorcock”) at 68, “the law is raising an implication from the presumed intention of the parties with the object of giving to the transaction such efficacy as both parties must have intended that at all events it should have” (cited in Sembcorp Marine at [84]). However, depending on the nature of and the parties to the contract, for instance one between family members, there could be other external normative standards which may be more appropriate than business efficacy in distilling the parties’ presumed intentions (Sembcorp Marine at [85] and [99]).

It has been held that the interpretation of a contract and the interpretation of a trust deed share “the same ideological premise” of giving effect to the objectively ascertained intentions of the parties to the instrument; the legal principles governing the interpretation of contracts would thus generally apply to the interpretation of trust deeds (Eller, Urs v Cheong Kiat Wah [2020] SGHC 106 at [45], affirmed in ESR Group Ltd v HSBC Institutional Trust Services (Singapore) Ltd [2024] 1 SLR 1164 at [53]). On principle, this position would extend to applying the legal principles governing the implication of contractual terms in fact to the implication of terms in fact into a trust deed. There is also, as JBTC pointed out, precedent in English case law for doing so (see, eg, A v C [2026] AC 846 (“A v C”) at [3] and [65]–[81]).

I will therefore apply the three-step approach in Sembcorp Marine (at [101]) in determining Issue 1.

Application of legal principles to the facts

At the first step, I accept the Settlor’s uncontested evidence that:

(a) When he settled the Moss Trust and for several years thereafter, he firmly believed that the Wife would outlive him.

(b) When he and JBTC executed the 2017 Amendment, he did not (and he believed that JBTC also did not) consult the Wife on whether she would agree to accept the power of amendment. He also did not (and believed that JBTC also did not) consider the possibility that the Wife would refuse to accept the power of amendment. He simply assumed that the Wife would not have any concerns with having the power of amendment.

I therefore find that there was a “true” gap in the 2017 Amendment in that, because the Settlor (and, for that matter, JBTC) did not contemplate that the Wife might refuse to accept the power of amendment, there was no provision for what should happen to the power of amendment if the Wife declined to accept it. I disagree with JBTC’s point that the existence of the gap “must be considered in the context that many trusts do not contain powers of amendment, and this does not make them unworkable” (see [88] above). This “context” is not relevant to the Moss Trust, which was, from inception, designed to be amendable (see [9] and [14] above). JBTC’s point also does not change the fact that neither the Settlor nor JBTC contemplated, when executing the 2017 Amendment, that the Wife might refuse to accept the power of amendment. As for JBTC’s other point that the 2017 Amendment did not cater for anyone to have the power of amendment during the period after the Wife’s death and while the Settlor was still alive (see [88] above), that might well constitute a separate gap in the 2017 Amendment in that the Settlor did not contemplate dying after the Wife, and as such, the 2017 Amendment did not provide for what should happen to the power of amendment in that scenario; it does not contradict the existence of the relevant gap under discussion.

At the second step, I accept JBTC’s submission that the relevant intention behind the 2017 Amendment is that of the Settlor and not JBTC (see [86] above) as it was the Settlor who had, and was exercising, the power to amend the terms of the Moss Trust to confer the power of amendment on the Wife.

I further accept the uncontested evidence of the Settlor that it was always his intention that the terms of the Moss Trust could be amended and that he regarded the power of amendment as critical to the interests of the beneficiaries (ie, the Wife and the Children) in providing the Moss Trust with the necessary flexibility for tax planning purposes. This evidence is corroborated by (a) the fact that the Original Trust Deed and the 2016 Trust Deed vested a power of amendment in the Settlor (see [9] and [14] above); and (b) the Settlor’s e-mail to JBTC’s external counsel (who were preparing the 2017 Amendment) dated 29 March 2017 communicating that the Moss Trust must be amendable “in view of the fact that we live in a changing world and [an] inflexible trust may be damaging to the interest of beneficiaries in future”.

As alluded to at [94] above, outside the context of commercial transactions, there is scope for the application of other normative standards (apart from the “business” efficacy of a contract) to gauge if it is necessary to imply a term to fill the gap. The present case does not concern a conventional commercial transaction. It concerns a family trust (the Moss Trust) settled by a patriarch (the Settlor) with the overarching objective of providing for his family in the long-term. The specific instrument into which the implication of a term is being considered is the 2017 Amendment, which is a deed by which the Settlor amended the terms of the said family trust. In these circumstances, the “efficacy as [the relevant] parties must have intended that at all events [the transaction] should have” (Sembcorp Marine at [84], citing The Moorcock at 68) ought not to be measured in terms of the commercial workability of the transaction, ie, 2017 Amendment. Instead, efficacy ought to be measured in terms of the capacity for fulfilment of the purpose of the transaction, ie, what the Settlor objectively sought to achieve by the 2017 Amendment, bearing in mind its nature as a deed to amend a trust intended for the transmission and continued enjoyment of family wealth.

In my judgment, based on the evidence at [100] above, the purpose of the 2017 Amendment was to ensure the continued amendability of the Moss Trust so as to preserve flexibility in its structure, accommodate future changes in circumstances and safeguard the beneficiaries’ interests, all in keeping with the Settlor’s overarching objective in establishing the Moss Trust (viz, providing for his family in the long-term). The relevant inquiry is thus whether it is necessary, in order to achieve this purpose, to imply into the 2017 Amendment a provision for the continued existence and exercise of the power of amendment if the Wife refused to accept it. I answer this question in the affirmative. The inherent purpose of the Moss Trust, viz, its continued amendability, simply could not be achieved if the Wife refused to accept the power of amendment and there was no fallback provision in that situation. The implication of a term is thus necessary to give effect to the Settlor’s presumed intention that there should be provision for the continued existence and exercise of the power of amendment if the Wife refused to accept it, so as to achieve the Settlor’s purpose for the Moss Trust to always be amendable.

Turning to the third step, I find that the specific term to be implied in the 2017 Amendment is as follows: if the Wife refused to accept the power of amendment, the Settlor would have a limited power to amend the terms of the Moss Trust for the sole purpose of vesting the power of amendment in another person (“Implied Term (2017 Amendment)”). I reach this view because it was the Settlor who had the power of amendment from the time the Moss Trust was established up to when he conferred (by the 2017 Amendment) the power of amendment on the Wife instead. At the time the 2017 Amendment was being prepared, if the Wife had made known that she did not wish to accept the power of amendment, the Settlor would have been the one to choose another person in whom to vest the power of amendment. It is only logical that, if the Settlor had thought that the Wife might subsequently refuse to accept the power of amendment, he would likewise have expected to be the one to choose another person in whom to vest the power of amendment in that event. By parity of reasoning, JBTC would have shared this same expectation. In other words, had the Implied Term (2017 Amendment) been put to the Settlor and JBTC at the time of the 2017 Amendment, they would have responded “Oh, of course!”.

I disagree with the claimants’ submission that the term to be implied should be formulated per the Claimants’ Implied Term, ie, that if the Wife declined to accept the power of amendment, then the Settlor, the Wife and JBTC may, by mutual consent, assign the power of amendment to another party who was not the Settlor or the Wife (see [58(a)] above). First, where the Wife refused to accept the power of amendment, I see no reason the Settlor would have expected her to (still) have any control over whom the power of amendment should be conferred on instead. Second, Mr Amir Mossanen’s evidence about what “everyone” purportedly believed in 2019 (see [84(a)] above) is irrelevant because the officious bystander test is applied with reference to how the Settlor would have responded to the proposed implied term at the time of the 2017 Amendment. Third, the claimants’ reliance on what JBTC’s Singapore counsel said (see [84(b)] above) is of no assistance because the disclosed communications show only that the counsel made a conclusory statement that there were no issues with the 2019 Modification, without elaboration. Fourth, I disagree with the claimants’ characterisation that the 2019 Modification showed that the parties acted as if the Claimants’ Implied Term existed (see [84(c)] above). To the contrary, the mechanism by which the power of amendment was vested in JBTC via the 2019 Modification was through further amendment of the term in the 2016 Trust Deed conferring the power of amendment (see [24] above). As framed, the Claimants’ Implied Term did not confer any power on the Wife or JBTC to amend the relevant term of the Moss Trust to vest the power of amendment in JBTC. Further and in any event, the Wife could have had no power to make this specific amendment via the 2019 Modification (even assuming, arguendo, that the Claimants’ Implied Term purported to confer such power on her) because she had already refused to accept “any and all power to amend the terms of the Moss Trust” via the prior 2019 Declination.

I therefore conclude that it is an implied term of the 2017 Amendment that if the Wife refused to accept the power of amendment, the Settlor would have a limited power to amend the terms of the Moss Trust for the sole purpose of vesting the power of amendment in another person.

Issue 2

Issue 2 asks: If the 2017 Amendment did not contain the Claimants’ Implied Term, should the 2017 Amendment be rectified to include a term with the content of the Claimants’ Implied Term?

The claimants submitted that Issue 2 arose only if the Claimants’ Implied Term did not exist. This is correct and remains so where I have found that a differently formulated implied term, viz, the Implied Term (2017 Amendment), exists. This is because the implication of terms and the rectification of terms are based on fundamentally incompatible factual foundations. A term may be implied to fill a gap which was not contemplated by the parties (see [93(a)] above). In contrast, equitable rectification involves correcting a written instrument where the words used inaccurately or inadequately convey the parties’ objectively ascertained intentions (Yap Son On v Ding Pei Zhen [2017] 1 SLR 219 at [62]); this presupposes that there was no gap and that the parties had contemplated how to address the issue in question but ended up expressing their agreement on the same inaccurately or inadequately in the written instrument (see also Sembcorp Marine at [96]). Since I have found that there was a gap in the 2017 Amendment arising from the fact that the Settlor (and JBTC) did not contemplate that the Wife might refuse to accept the power of amendment (see [98] above), it is not possible to proceed on an inconsistent premise that the Settlor had applied his mind to how to address this situation at the time of the 2017 Amendment and that the 2017 Amendment should be rectified to reflect such a purported intention. Issue 2 thus does not arise for consideration, and I say no more about it.

Issue 3

Issue 3 asks: Did the Settlor, the Wife and JBTC validly agree by way of the 2019 Modification to assign the power of amendment to JBTC acting with the prior or simultaneous consent of the protector(s) of the Moss Trust?

The claimants’ case

The claimants submitted that Issue 3 should be summarily determined for reasons similar to those set out at [80] above.

The claimants submitted that if the answer to either Issue 1 or Issue 2 was in the affirmative, the 2019 Modification would be valid, ie, Issue 3 would be answered in the affirmative.

JBTC’s case

JBTC submitted that Issue 3 was suitable for summary determination since Issues 1 and 2 were “likely to be dispositive of [Issue 3]”.

If Issues 1 and 2 were answered in the negative, Issue 3 should be answered in the negative.

If either Issue 1 or Issue 2 was answered in the affirmative, the next question was whether the implied or rectified term (as the case may be) was validly exercised by way of the 2019 Modification. If it was, Issue 3 should also be answered in the affirmative. In this connection, JBTC pointed out that:

(a) The 2019 Modification was not expressed to be made in exercise of the Claimants’ Implied Term.

(b) Recital (G) in the 2019 Modification stated that “acting together”, the Settlor, the Wife and JBTC “mutually consent[ed]” to the modification of, inter alia, the relevant term in the Moss Trust to confer the power of amendment on JBTC.

(c) Clause 4 of the 2019 Modification provided that: “[JBTC] hereby acknowledges the modifications set forth herein”.

JBTC stated that it would abide by the court’s determination on Issue 3 “in light of the Court’s determination of [Issues 1 and 2]”.

Decision

Preliminary issue concerning the effectiveness of the 2019 Declination

It was common ground between the parties that the 2019 Declination was effective as a refusal by the Wife to accept the power of amendment. I agree.

As the learned authors of Lynton Tucker, Nicholas Le Poidevin QC & James Brightwell, Lewin on Trusts vol II (Sweet & Maxwell, 20th Ed, 2020) (“Lewin on Trusts vol II”) state at para 28-052: “The settlor is free to choose any third party as the donee of a power. The third party may, of course, decline to act and is free to do so” [emphasis added]. An effective refusal to accept a power means that the intended donee never had the power to begin with. In my view, such a refusal would not be effective if the intended donee had already accepted or exercised the power prior to expressing his/her purported refusal to accept the power. In the present case, the Wife declared in the 2019 Declination that she had never exercised or purported to exercise any power to amend the Moss Trust (see [21] above), and this was not disputed by the parties. The Wife was thus entitled to refuse to accept the power of amendment which the 2017 Amendment had sought to confer on her. The parties did not contend that the Wife’s refusal had to be expressed in any particular form or was subject to any formalities. The Wife’s declaration in the 2019 Declination that she declined to accept any and all power to amend the terms of the Moss Trust (see [21] above) thus constituted an effective refusal by her of the power of amendment.

The relevant question: whether the Settlor made the 2019 Modification in exercise of his power under the Implied Term (2017 Amendment)

I have found that the Settlor had a limited power under the Implied Term (2017 Amendment) to amend the terms of the Moss Trust in this situation for the sole purpose of vesting the power of amendment in another person (see [103] and [105] above). The question which arises for determination is thus whether the Settlor had exercised his power under the Implied Term (2017 Amendment) in making the 2019 Modification such that the 2019 Modification validly vested the power of amendment in JBTC.

I am mindful that I have framed the question for determination differently from that posed by Issue 3. The difference is due to my finding (under Issue 1) that the term to be implied in the 2017 Amendment is the Implied Term (2017 Amendment) and not the Claimants’ Implied Term. I do not think my approach poses any difficulty. First, O 9 r 19(1) of the ROC 2021 provides that the court may decide any question of law or the construction of any document “on the Court’s own accord” (see [63] above), which means that the court may act on its own initiative to make such a ruling even if neither party had requested it (Aquilo Shipping at [41]). Second, the essence of the inquiry under both questions is the same. As the claimants themselves put it in their written submissions, what they wanted to know by Issue 3 was: “is the 2019 Modification valid?”. The question I have framed entails this inquiry.

Issue 3 (as reformulated) should be summarily determined

While the question is strictly one of mixed fact and law, it involves no contested facts. I therefore find, for reasons similar to those set out at [91] above, that the question should be summarily determined.

The relevant law: imputed exercise of powers doctrine

I turn then to the determination of whether the Settlor had exercised the power conferred by the Implied Term (2017 Amendment) in making the 2019 Modification such that the 2019 Modification validly vested the power of amendment in JBTC.

A power is the ability to do lawfully something which, absent the power, would be unlawful (Snell’s Equity (Steven Elliott KC gen ed & John McGhee KC consulting editor) (Sweet & Maxwell, 35th Ed, 2025) (“Snell’s Equity”) at para 10-001). Powers may be public or private, legal or equitable (Snell’s Equity at para 10-001). Powers in private law include the powers of trustees and others concerned in the administration of a trust (Snell’s Equity at para 10-001).

In the context of powers in private law, to determine whether a particular administrative or distributive or dispositive power has been exercised, the court will look at all the relevant documentation to see whether there was (a) an express or implied reference to the power or to the property subject to the power or (b) an intention to bring about a particular result that could only have been achieved by an exercise of the power (Halsbury’s Laws of England vol 98 (David Hay ed & Clare Stanley consultant editor) (LexisNexis, 5th Ed, 2024) at para 553). The latter principle is part of what is known as the imputed or implied exercise of powers doctrine (see, eg, BIC UK Ltd v Burgess [2019] EWCA Civ 806 (“BIC”) at [63]), although, as will be seen (at [135(a)] below), I think it is more accurate to describe the doctrine as involving the imputed (as opposed to implied) exercise of powers. The imputed exercise of powers doctrine is well-recognised in English law, but does not appear, so far as I am aware, to have been considered in Singapore case law.

One of the earlier English cases in which the doctrine was articulated and applied is Mogridge v Clapp [1892] 3 Ch 382 (“Mogridge”). In that case, a lessor, believing himself to be the absolute owner of certain land, granted a lease of the land purportedly as the absolute owner. The lessor was, however, actually only a tenant for life. Nevertheless, in that capacity, he had the power to grant the lease under the Settled Land Act 1882 (c 38) (UK) (“Act”). The question before the court was whether the lease had been validly granted in the exercise of the lessor’s power to do so under the Act, notwithstanding that “the lessor did not know that he was exercising the power given by the Act; he probably did not know that there was such a power, and also did not intend such a power to be exercised, even if he knew it existed” (at 387). Kekewich J (whose decision was affirmed on appeal) held that the lease was valid, stating (at 388):

In Davis v Richards & Wallington Industries Ltd [1990] 1 WLR 1511 (“Davis”), Scott J (as he then was) applied the doctrine to impute the exercise of a power to remove a trustee. The case concerned a pension scheme for the employees of a group of companies established by an interim trust deed in 1975 (“1975 Deed”). In 1982, a deed prescribing the rules of the pension scheme was executed by the parent company of the group (“Industries”) and two trustees of the pension scheme (“1982 Deed”). One Mr Parsons had previously been appointed as the third trustee of the pension scheme but had tendered a signed letter of resignation from his trusteeship in 1981, after which he played no further part as a trustee and was treated by the remaining two trustees as if he had resigned. Mr Parsons was not a party to the 1982 Deed. A question arose as to whether Mr Parsons remained one of the trustees, such that the 1982 Deed was invalid by reason of not having been executed by him. Scott J answered this question in the negative, finding that the 1975 Deed contained an implied term enabling a trustee to resign and that Mr Parsons’ letter of resignation in 1981 was effective to relieve him of his trusteeship (at 1528G–1529H).

Scott J nevertheless went on to consider whether, assuming Mr Parsons had remained a trustee, the execution by Industries of the 1982 Deed represented Industries’ exercise of its power under the 1975 Deed to remove Mr Parsons as a trustee (Davis at 1530A–B).

In this connection, Scott J first articulated the imputed exercise of powers doctrine as it had been applied in cases dealing with dispositions of property (Davis at 1530G–H):

Scott J then reasoned that there was no basis for confining the application of the doctrine to dispositions of property, and opined that it applied to the case at hand (Davis at 1530H–1531A):

Scott J stressed that, under the doctrine, it was unnecessary to infer a positive intention on the part of the donee of the power to exercise the power; the intention to exercise the power would be imputed to the donee unless it could be inferred that the donee had the positive intention not to exercise the power (Davis at 1531C–D).

On the facts of the case, Industries had intended to bring the rules of the pension scheme into effect by way of the 1982 Deed. If Mr Parsons was still a trustee, he would have had to be removed from that position for the 1982 Deed (to which Mr Parsons was not a party) to be valid. Industries had the power to remove Mr Parsons as a trustee. Applying the doctrine, Scott J found that while the removal of Mr Parsons as a trustee was simply not on anyone’s mind, equity would impute to Industries an intention to exercise its power to remove Mr Parsons as a trustee and treat that power as exercised by Industries’ execution of the 1982 Deed, with the effect that the 1982 Deed was valid because Mr Parsons was not a necessary party to it (Davis at 1531F).

In LRT Pension Fund Trustee Co Ltd v Hatt [1993] OPLR 225 (“LRT Pension Fund”), a company (“LRT”) and three trustees (“original trustees”) executed an interim trust deed in 1986 (“interim deed”) to establish a pension scheme for LRT’s employees. The interim deed contained a clause which reserved to the original trustees and LRT the power of amendment. In 1989, the original trustees, LRT and another company (“LRT Trustee Co”) executed a deed of appointment discharging the original trustees and appointing LRT Trustee Co as the trustee under the interim deed. Applying Davis, Knox J held that the deed of appointment evinced a clear intention of the original trustees and LRT to substitute LRT Trustee Co for the original trustees as the trustee of the interim deed; the original trustees and LRT could exercise the power of amendment in the interim deed to effect that substitution; it was not shown that the original trustees and LRT had an intention not to exercise the said power of amendment; and the execution of the deed of appointment could thus be treated as a direct exercise by the original trustees and LRT of the said power of amendment even though they had no such exercise of the power of amendment in mind (at 260).

In BIC, the English Court of Appeal recognised that the imputed exercise of powers doctrine, exemplified by cases such as Davis, had “a valuable function to perform in cases where trustees intend[ed] to bring about a particular result in the administration of a pension scheme which would depend for its validity on the exercise of a power vested in them” (at [63]). The relevant enabling power had, however, to be in existence at the time when the relevant transaction took place (at [63]).

In Briggs v Gleeds (Head Office) [2014] 3 WLR 1469 (“Briggs”), Newey J (as he then was) cautioned that the courts must beware of deeming trustees to have exercised a power that they did not in fact have in mind, if the exercise of that power required the examination of materially different considerations from those relevant to the power that the trustees saw themselves as exercising. This was because trustees could be guilty of breach of duty if they failed to take account of material considerations when making a decision. If trustees were treated as having unknowingly exercised a power which they might not have exercised had they had regard to considerations relevant to its exercise, they could be deemed to have failed in their duties in connection with something that they had never actually intended to do in the first place, which could hardly be right (at [95]).

Newey J also made a separate point that the doctrine could not normally be invoked unless it allowed the whole of what the decision-maker was trying to do to be achieved (Briggs at [96]):

In my respectful view, the crux of Newey J’s point is contained in his statement that “the Davis and LRT approach cannot normally… be used unless it allows the whole of what the relevant decision-maker was trying to do to be achieved”. It was to illustrate this point that Newey J gave the example of how, “[w]here a decision-maker seeks to do more than one thing in a single document”, the application of the imputed exercise of powers doctrine vis-à-vis that decision-maker should result in the validation of the whole document. This example assumes, however, that the single document does not seek to give effect to separate transactions made by different decision-makers. Where the document does so, my view is that the principle articulated by Newey J calls for the whole of the relevant transaction (and not necessarily the whole of the document) to be capable of being validly effected through the application of the imputed exercise of powers doctrine vis-à-vis the relevant decision-maker. I will demonstrate, at [139(f)] below and with reference to the 2019 Modification, how the distinction I have drawn applies in practice.

From the above authorities, the following principles under the imputed exercise of powers doctrine can be distilled:

(a) Where a party (X) intends to effect a given transaction and the exercise of a power vested in X is necessary for that transaction to be validly effected, X will be taken to have exercised that power even if (i) there was no reference to the power and/or (ii) an actual intention by X to exercise the power cannot be discerned, unless a positive intention by X not to exercise the power can be inferred (Mogridge at 388; Davis at 1530G–1531D; LRT Pension Fund at 260; BIC at [63]; see also Lewin on Trusts vol II at para 29-078). It is clear that the doctrine entails imputing to X an intention to exercise the power (see also Davis at 1530G–H, cited at [126] above), as opposed to finding an implied actual intention on X’s part to exercise the power. For this reason, I consider it more apt to refer to the doctrine as the imputed exercise of powers doctrine (as opposed to the implied exercise of powers doctrine).

(b) The relevant enabling power must be in existence at the time the relevant transaction was effected (BIC at [63]).

(c) The application of the doctrine must lead to the validation of the whole of the relevant transaction (Briggs at [96]; see also [133]–[134] above).

(d) Particularly where fiduciary powers are concerned, the trustee (or other donee) should not be treated as having exercised the power if its exercise required the examination of materially different considerations from those which the trustee/donee did consider, or there was otherwise doubt whether the trustee/donee would have exercised the power after a proper examination of the considerations relevant to its exercise (Briggs at [95]; see also Lewin on Trusts vol II at para 29-079).

At [160]–[165] below, I expand on the application of the principles set out at [135(a)] and [135(d)] above in the situation where (a) the donee has purported to exercise a particular power, (b) which it turns out the donee could not have validly exercised, and (c) the court is asked to impute an intention by the donee to exercise a different power.

In my view, the imputed exercise of powers doctrine likewise applies in Singapore law. I see no reason in principle or of policy it should not do so.

Application of legal principles to the facts

For purposes of exposition, I group the amendments made by the 2019 Modification to the terms of the Moss Trust as follows, because the analysis of their respective validity differs accordingly:

(a) an amendment to cl 3.2(ii) of the 2016 Trust Deed to make the Moss Trust amendable by JBTC with the prior or simultaneous written consent of the protector(s), with immediate effect from the date of execution of the 2019 Modification (see [24] above) (“Amendment to Vest Power of Amendment in JBTC”); and

(b) all other amendments to the terms of the Moss Trust set out in cl 3 of the 2019 Modification (see, eg, [25]–[27] above) (“Other Amendments”).

In respect of the Amendment to Vest Power of Amendment in JBTC, I find that:

(a) The Implied Term (2017 Amendment), being a term implied in the 2017 Amendment, was in existence at the time the Amendment to Vest Power of Amendment in JBTC was made.

(b) The Settlor had power under the Implied Term (2017 Amendment) to make the Amendment to Vest Power of Amendment in JBTC, upon the Wife declaring in the 2019 Declination her refusal to accept the power of amendment.

(c) The Amendment to Vest Power of Amendment in JBTC could only have been validly made pursuant to the Settlor’s exercise of his power under the Implied Term (2017 Amendment).

(d) While the 2019 Modification did not refer to the Implied Term (2017 Amendment) and the Settlor did not have the Implied Term (2017 Amendment) or its exercise in mind at the time the Amendment to Vest Power of Amendment in JBTC was made, there is also nothing showing that the Settlor had a positive intention not to exercise the Implied Term (2017 Amendment). In this regard, the statement in Recital (G) in the 2019 Modification that “acting together”, the Settlor, the Wife and JBTC “mutually consent[ed]” to the Amendment to Vest Power of Amendment in JBTC is neither here nor there, as there was nothing wrong with the Wife and JBTC also being agreeable to that amendment (even though their consent was not actually required under the Implied Term (2017 Amendment)). Nor does cl 4 of the 2019 Modification (recording JBTC’s acknowledgment of the amendments in the 2019 Modification) suggest that the Settlor positively intended not to exercise his power under the Implied Term (2017 Amendment) to make the Amendment to Vest Power of Amendment in JBTC.

(e) In these circumstances, applying the imputed exercise of powers doctrine, the Settlor should be taken as having intended to exercise his power under the Implied Term (2017 Amendment) to make the Amendment to Vest Power of Amendment in JBTC.

(f) The relevant transaction in the 2019 Modification which the Settlor was trying to achieve was the Amendment to Vest Power of Amendment in JBTC. While the same document (viz, the 2019 Modification) also contained the Other Amendments, those were sought to be achieved by JBTC (after being vested with the power of amendment). Applying the principle in Briggs at [96] as I have explained it (at [133]–[134] above), this is a case where the imputed exercise of powers doctrine can be readily applied vis-à-vis the Settlor because it would achieve the whole of the relevant transaction, viz, the Amendment to Vest Power of Amendment in JBTC. In any event, the Other Amendments were also and subsequently validly made by way of the 2019 Modification, as I explain at [140] below.

(g) The Amendment to Vest Power of Amendment in JBTC set out in the 2019 Modification was thus validly made, and it validly vested the power of amendment of the terms of the Moss Trust in JBTC with immediate effect upon the execution of the 2019 Modification. The relevant question in connection with Issue 3 (as reformulated at [117] above) is answered in the affirmative.

For completeness, while not the subject of Issue 3 (before or after reformulation), I also address the validity of the Other Amendments made by way of the 2019 Modification. In my judgment:

(a) The execution of the 2019 Modification vested in JBTC the power of amendment (see [139(g)] above) which JBTC could simultaneously exercise to make the Other Amendments set out in the 2019 Modification.

(b) The Other Amendments could only have been validly made pursuant to JBTC’s exercise of its power of amendment with the prior or simultaneous written consent of the protector(s).

(c) It cannot be inferred that JBTC had a positive intention not to exercise its power of amendment. I am mindful that Recital (G) in the 2019 Modification also stated that “acting together”, the Settlor, the Wife and JBTC “mutually consent[ed]” to certain of the Other Amendments and “further modif[ied]” the 2016 Trust Deed in the manner set forth in the 2019 Modification. However, to the extent this statement reflects the purported exercise by the named persons of a power to make the Other Amendments, (i) it is irrelevant where the Settlor and the Wife are concerned because they simply did not have such a power, and (ii) it in fact suggests that JBTC did intend to exercise its power of amendment. As for cl 4 of the 2019 Modification (recording JBTC’s acknowledgment of the amendments in the 2019 Modification), I regard this acknowledgment as neutral; it does not indicate that JBTC intended not to exercise its power of amendment.

(d) In these circumstances, applying the imputed exercise of powers doctrine, JBTC should be taken as having exercised its power of amendment to make the Other Amendments.

(e) At the time of the 2019 Modification, the sole protector of the Moss Trust was the Settlor. Under the 2016 Appointment, the Settlor had appointed the Wife to serve as the successor Chairman of the Committee only after his death, resignation or incapacity (see [16] above). Since none of those events had materialised, the Settlor remained the (sole) protector. The Settlor only appointed Mr Jaeggi and Mr Benezra as protectors in his stead by way of the 2019 Appointment, which was executed after the 2019 Modification (see [29]–[33] above). Thus, only the Settlor’s (qua protector) prior or simultaneous written consent to the Other Amendments was required for JBTC’s valid exercise of its power to make the Other Amendments. The Settlor simultaneously gave his written consent to the Other Amendments, as evidenced by Recital (G) in, and his execution of, the 2019 Modification.

(f) The Other Amendments set out in the 2019 Modification were thus validly made.

Accordingly, I answer Issue 3 (as reformulated at [117] above) in the affirmative. In addition, though not strictly the subject for my determination in Issue 3, I find that the Other Amendments were validly made by way of the 2019 Modification.

Issues 4 and 5

Issue 4 asks: Is JBTC estopped by convention from denying the validity of the 2019 Modification and all subsequent amendments to the terms of the Moss Trust, including the 2024 Trust Deed?

Issue 5 asks: Should the court exercise its alleged inherent jurisdiction to sanction the 2019 Modification and all subsequent amendments to the terms of the Moss Trust, including the 2024 Trust Deed?

The claimants’ case on Issues 4 and 5 was premised on the 2019 Modification being invalid (which the claimants denied). In the light of my decision that the 2019 Modification was valid (see [139(g)] and [140(f)] above), Issues 4 and 5 do not arise for consideration, and I say no more about them.

Issue 6

Issue 6 asks: Are the current terms of the Moss Trust set out in the 2024 Trust Deed?

The parties’ positions

It was common ground between the parties that if Issues 1 and 3 were answered in the affirmative, it followed that the current terms of the Moss Trust were set out in the 2024 Trust Deed.

Decision

I agree that the determination of Issue 6 flows logically from my decisions on Issues 1 and 3. That being so, Issue 6 involves a simple question of law that is suitable for summary determination.

In the light of my decision (under Issue 1) that the Implied Term (2017 Amendment) existed (see [105] above), and my decision (in connection with Issue 3) that the 2019 Modification was valid (see [139(g)] and [140(f)] above), it follows that all amendments to the terms of the Moss Trust made after the 2019 Modification pursuant to JBTC’s exercise of its power of amendment were valid, such that the current terms of the Moss Trust are set out in the 2024 Trust Deed.

Issue 8

Issue 8 asks: Were Mr Jaeggi and Mr Benezra validly appointed as members of the Committee pursuant to the 2019 Appointment?

The claimants’ case

The claimants submitted that Issue 8 was suitable for summary determination. First, the answer to Issue 8 went directly to the claimants’ entitlement to the declaration sought by them in OC 848 that Mr Jaeggi and Mr Benezra were validly appointed as the protectors of the Moss Trust (see [59(b)] above). Second, no dispute of fact was raised by Issue 8 as JBTC simply made no admission as to whether Mr Jaeggi and Mr Benezra were validly appointed.

The claimants submitted that the 2019 Modification was valid and/or that JBTC was estopped from denying the validity of the 2019 Modification, with the result that the 2019 Appointment and Mr Jaeggi and Mr Benezra’s appointment as protectors were valid.

Even if the 2019 Modification was invalid and JBTC was not estopped by convention from denying the validity of the 2019 Modification, “the implied exercise of powers doctrine applie[d] to validate the [2019 Appointment]”. According to the claimants, “[t]he implied exercise of powers doctrine applies to a situation where trustees or other power-holders have purported to exercise a power (the first power) to achieve a particular result; it was not possible to do what they wanted to do using the first power, but it would have been possible to achieve it if they had exercised a different power (the second power)”. In the present case, if the 2019 Modification was invalid, the terms of the Moss Trust would be those set out in the 2016 Trust Deed (as amended by the 2017 Amendment), under cl 9.3 of which the Settlor had the power to appoint new protectors (see [15] above). “Applying the implied exercise of powers doctrine”, although Recital (F) in and cl 3 of the 2019 Appointment referred to the Settlor exercising his power to appoint protectors under cl 9.2 of the 2016 Trust Deed (as amended by the 2019 Modification) (see [27] above), there was nothing to exclude the Settlor’s intention to appoint Mr Jaeggi and Mr Benezra as protectors by exercising his power to do so under cl 9.3 of the 2016 Trust Deed (as amended by the 2017 Amendment).

JBTC’s case

JBTC made no admission as to Mr Jaeggi and Mr Benezra’s status as protectors; took no position on Issue 8; and averred that it was “ready, able and willing” to abide by the court’s decision on whether they were validly appointed. JBTC noted that if the 2019 Modification was valid, Issue 8 should be answered in the affirmative. If the 2019 Modification was invalid, “it may be the case that [the Settlor] nevertheless retained a power of appointment pursuant to the 2016 Trust Deed … and … was therefore able to effect the 2019 Appointment”.

Decision

Issue 8 should be summarily determined

I accept that Issue 8 should be summarily determined for the reasons given by the parties.

Power of the Settlor to appoint Mr Jaeggi and Mr Benezra as protectors

By way of background, the term “protector” is not a term of art, but a title adopted in trust instruments to describe the holder of a group of powers or requirements of consent (A v C at [10]; Lewin on Trusts vol II at para 28-044). The appointment of protectors is a common feature of offshore trusts, particularly those establishing family settlements where the settlor and beneficiaries are resident elsewhere: as the local trust companies usually appointed as trustees may lack close knowledge or understanding of the settlor’s family, the settlor may find it attractive to include provisions for protectors who are geographically and personally closer to the settlor and the beneficiaries (A v C at [5]–[6] and [8]). Unlike a trustee, the law has thus far not attached particular responsibilities, duties, liabilities and rights to the role of a protector (A v C at [10]). The functions and responsibilities of a given protector depend on what has been provided for in the relevant trust deed (A v C at [12]; Lewin on Trusts vol II at para 28-047).

In the present case, cl 3 of the 2019 Appointment is the operative provision by which Mr Jaeggi and Mr Benezra were appointed as protectors by the Settlor. To recapitulate (see [33] above), the provision stated:

The term “Trust” in cl 3 was defined in Recital (A) to refer, in effect, to the 2016 Trust Deed as last amended by the 2019 Modification (see [30] above).

Since I have found that the 2019 Modification was valid in its entirety (see [141] above), the relevant inquiry is whether the Settlor had, and had exercised, the power under cl 9.2 of the 2016 Trust Deed (as amended by the 2019 Modification) to appoint Mr Jaeggi and Mr Benezra as protectors, as stated in cl 3 of the 2019 Appointment. I answer this question in the affirmative. Clause 9.2 of the 2016 Trust Deed (as amended by the 2019 Modification) provided, in the material part, that “[t]he Committee acting by majority shall have the power, by instrument in writing delivered to [JBTC], to appoint a replacement or additional Protector” (see [27] above). As I have explained at [140(e)] above, prior to the 2019 Appointment, the “Committee” comprised the Settlor as the sole protector of the Moss Trust. The Settlor thus had the power under cl 9.2 of the 2016 Trust Deed (as amended by the 2019 Modification) to appoint Mr Jaeggi and Mr Benezra as protectors, and he validly did so through the execution and delivery to JBTC of a written instrument in the form of the 2019 Appointment. Mr Jaeggi and Mr Benezra were thus validly appointed as members of the Committee pursuant to the 2019 Appointment.

Even if, arguendo, the 2019 Modification was invalid and the applicable terms of the Moss Trust were those set out in the 2016 Trust Deed as last amended by the 2017 Amendment, I would still find that Mr Jaeggi and Mr Benezra were validly appointed as protectors pursuant to the 2019 Appointment. Where writing of some kind is prepared in which a power is exercised, a common form of words used is: “In the exercise of [a specifically cited] power and of all other powers him enabling [the donee] hereby …”; the reference to “all other powers him enabling” is intended to cater for a case in which the power specifically cited does not in fact warrant the exercise undertaken but some other power may be available, whether in the trust instrument or conferred by statute (Lewin on Trusts vol II at para 29-075). In the present case, cl 3 of the 2019 Appointment expressly contemplated the exercise of “every … other power enabling the Settlor” to appoint Mr Jaeggi and Mr Benezra as protectors (ie, every other power apart from that in the specifically cited cl 9.2 of the 2016 Trust Deed (as amended by the 2019 Modification)). In this regard, the Settlor had power under cl 9.3 of the 2016 Trust Deed (as amended by the 2017 Amendment), as the first Chairman of the Committee, to appoint other Committee members by an instrument in writing signed by him and delivered to JBTC (see [15] above). The Settlor effectively did so by way of the 2019 Appointment.

Further observations on the imputed exercise of powers doctrine

There is thus no necessity for the claimants to resort to the “implied exercise of powers doctrine” (or, more accurately termed, the imputed exercise of powers doctrine). Nevertheless, I express some reservations over the claimants’ description of the applicable principles, which, to recapitulate (see [152] above), was in the following terms:

In Kain v Hutton [2008] 3 NZLR 589 (“Kain”), trustees purported to exercise their power of advancement in making a transaction. Certain beneficiaries objected that the trustees could not validly exercise the power of advancement to make the transaction. The trustees argued that the court should treat the trustees as having exercised their power of appointment instead, which could be validly exercised to make the transaction. The Supreme Court of New Zealand rejected this argument, holding that a power of appointment and a power of advancement were in substance quite different things (at [32]). Blanchard J, who delivered a judgment on behalf of himself and three other members of the court, held that “[w]here trustees have attempted to use a power they did not in fact enjoy, the courts will not come to their rescue by treating their action as if they had been engaged in exercising a quite different power that they did actually possess” (at [35]). Blanchard J found that the trustees had very deliberately embarked upon a purported exercise of their power of advancement; the trustees were well aware of the distinction between advancement and appointment, having chosen on the same day to effect another transaction by exercising their power of appointment, which suggested that they were intent on something different in relation to the transaction in question; and their “election against the use” of the power of appointment under a clause in the trust deed made it “quite impossible to argue that what occurred should be regarded as an appointment made under that clause” (at [37]). Tipping J, the other member of the court who delivered a concurring judgment, added that the trustees could not properly be treated as having exercised “a power of a materially different kind requiring examination of materially different considerations” (at [60]).

In Briggs, Newey J stated that the reasoning in Kain was “not wholly consistent” with that in Davis and LRT Pension Fund, which he should follow (at [95]). Nevertheless, as I have highlighted at [132] and [135(d)] above, Newey J went on to espouse the principle that trustees should not be deemed to have exercised a power that they did not in fact have in mind, if the exercise of that power required the examination of materially different considerations from those relevant to the power that the trustees saw themselves as exercising (Briggs at [95]). This principle is consistent with what Tipping J expressed in Kain at [60].

In Grand View Private Trust Company Ltd v Wong (2020) 96 WIR 209 (“Grand View (CA)”), the Court of Appeal of Bermuda referred to Newey J’s statement in Briggs at [95] that the reasoning in Kain was not wholly consistent with that in Davis and LRT Pension Fund, and expressed doubt that there was any inconsistency (at [297]). The court reasoned that Kain “can be looked upon as a case in which the court found that there was an intention not to exercise the relevant power” (Grand View (CA) at [297]). This view is consistent with the findings of Blanchard J in Kain at [37] that the trustees “were intent on something different” from making an appointment and therefore could not be found to have exercised their power of appointment. For completeness, the Judicial Committee of the Privy Council made no comment on the aforesaid views of the Bermudian Court of Appeal in the appeal against Grand View (CA) (which succeeded as regards the application of the proper purpose rule to the decision of the trustee under challenge) (Grand View Private Trust Co Ltd v Wong [2022] UKPC 47).

In my view, having regard to these authorities, there are two reasons why the court will be cautious about imputing to a donee the intention to exercise a “second power” (using the claimants’ language) in a situation where the donee had already purported to exercise a “first power”:

(a) First, the court must consider whether the donee’s reference to the exercise of the “first power” shows that the donee had intended not to exercise the “second power”. Where this is so, an intention to exercise the “second power” cannot be imputed to the donee. This is in line with the well-established principle in Davis and other cases that the court will not impute to a donee an intention to exercise a power where a positive intention by the donee not to exercise the power can be inferred (see [135(a)] above); and consistent with the view taken in Grand View (CA) of the approach in Kain (see [163] above).

(b) Second, the court must consider whether the relevant considerations which the donee must take into account in exercising the “first power” and the “second power” respectively are materially different. Where this so, an intention to exercise the “second power” should not be imputed to the donee, in line with the principle discussed at [132], [135(d)] and [162] above.

For these reasons, I think the claimants’ description of the imputed exercise of powers doctrine (see [160] above) is problematic in not accurately reflecting the law and should not be adopted. The applicable principles under the imputed exercise of powers doctrine remain those I have summarised at [135] above.

Issue 9

Issue 9 asks: Is the Protector Resolution Clause valid and enforceable for the purpose of Mr Jaeggi and Mr Benezra resolving any and all conflicts and ambiguities that might arise in the administration and interpretation of provisions within the Moss Trust concerning the distribution of trust assets?

The Protector Resolution Clause gives the protectors “absolute authorisation” to “resolve” in their “sole and absolute discretion” “any and all conflicts and ambiguities that might arise in the administration and interpretation of provisions within the Trust” (see [39] above). As the validity and enforceability of such a provision in a trust deed does not appear, so far as I am aware, to have been considered hitherto in Singapore case law, I appointed a Young Independent Counsel (“YIC”), Ms Jennifer Lim, to assist the court in addressing Issue 9.

The claimants’ case

The claimants submitted that Issue 9 was suitable for summary determination. First, the answer to Issue 9 went directly to the claimants’ entitlement to the declaration sought by them in OC 848 that the Protector Resolution Clause was valid and enforceable (see [59(f)] above). Second, no dispute of fact was raised by Issue 9 as JBTC simply made no admission as to whether the Protector Resolution Clause was valid.

The claimants submitted that the Protector Resolution Clause was valid, effective and enforceable because “in no way [did] it seek to preclude any party from seeking recourse from the Court in case of error of law, misconduct, etc.” on the part of the protectors. The absence of language such as “conclusive” and “final” in the Protector Resolution Clause meant that there was no ouster of the court’s jurisdiction. Even if the protectors’ determination was stated to be “conclusive” or “final”, the court retained the power to intervene. The claimants pointed to how expert determination clauses, which often contained language to the effect that the findings of the expert would be “final” and “binding” on the parties, were held to be valid.

The claimants also submitted that it was permissible to empower a party to determine both questions of fact and law, although it was impermissible to preclude recourse to the court in the event of an error of law. The protectors could rely on the Protector Resolution Clause to resolve questions of fact and law in relation to any conflicts and/or ambiguities arising from the administration of the Moss Trust and the interpretation of its terms (construction of written instruments being a question of mixed law and fact), subject to the following:

(a) The court may set aside the protectors’ determination of a question of fact if the protectors had (i) exercised their power of resolution in breach of their fiduciary duties; (ii) failed to ask themselves the correct questions; (iii) failed to direct themselves correctly in law; or (iv) arrived at a perverse decision, ie, a decision which no reasonable body of protectors could arrive at.

(b) The court may intervene to review the merits of the protectors’ determination of any question of law, ie, that the protectors had directed themselves correctly in law and had adopted a correct construction of the trust instrument. Recourse may “always” be had to the court to determine the same question of law that the protectors had considered.

The claimants further submitted that, by the 28 Aug 2025 Letter, Mr Jaeggi and Mr Benezra had effectively exercised the protectors’ power under the Protector Resolution Clause to determine that all of the trust assets should be distributed to the trustee of the Delaware Trusts. Mr Jaeggi and Mr Benezra had also determined, by the 28 Aug 2025 Letter, that the statement “any and all of the balance of the Trust Fund remaining and directed under this Clause 4.3” in cl 4.3(v) of the 2024 Trust Deed referred to the shares of the Investment Companies and not to “trophy residence[s]” mentioned in cl 4.3(iii). If the court agreed that Mr Jaeggi and Mr Benezra were entitled to make the determination that they did in the 28 Aug 2025 Letter pursuant to the Protector Resolution Clause, JBTC was bound by their determination.

JBTC’s case

Prior to the amendment of SUM 932, Issue 9 had been framed as, simply, whether the Protector Resolution Clause was valid, effective and enforceable. At that time, JBTC submitted that the issue involved a question of construction of the 2024 Trust Deed and was suitable for summary determination. JBTC in fact actively sought the court’s determination of the validity of the Protector Resolution Clause and stated that it was “ready and willing” to abide by such determination.

The claimants subsequently amended Issue 9 to, essentially, focus the question on whether the Protector Resolution Clause was valid and enforceable for the purpose of Mr Jaeggi and Mr Benezra resolving the parties’ dispute over which assets of the Moss Trust fell to be distributed and how such distribution was to be made following the Wife’s death (ie, the nub of Issue 7). JBTC appeared to put up some resistance to Issue 9 (in its current form) being summarily determined. JBTC argued that, first, it was not the claimants’ pleaded case that Mr Jaeggi and Mr Benezra had determined the proper and correct interpretation of cl 4.3(v) of the 2024 Trust Deed pursuant to an exercise of their power under the Protector Resolution Clause. Second, the interpretation of cl 4.3(v) of the 2024 Trust Deed was already submitted to the court for summary determination in the form of Issue 7; the parties agreed that Issue 7 was suitable for summary determination; and if the court decided on Issue 7, the validity of any determination by the protectors concerning the distribution of trust assets would be moot or academic.

On the substantive issue of the validity of the Protector Resolution Clause, JBTC’s position appeared to shift across its written submissions.

In its first set of written submissions, JBTC submitted that the Protector Resolution Clause “may” amount to an ouster of the court’s jurisdiction. At the same time, JBTC noted that the Protector Resolution Clause did not state that the protectors’ decision thereunder was “conclusive” and suggested that the clause did not preclude an application to the court to “assist in the interpretation of the relevant instrument”.

In its second set of written submissions, JBTC submitted that the protectors’ power under the Protector Resolution Clause was fiduciary in nature, such that the court could only set aside a determination by the protectors under the Protector Resolution Clause if (a) the determination was outside the scope of the power; (b) the protectors had given inadequate deliberation to whether and how they should exercise the power; or (c) the power had been used for an improper purpose. Where the exercise of power was set aside, the court would not then substitute its own decision or exercise the power itself. This raised the question of whether, as a matter of public policy, it was permissible for the court’s supervisory jurisdiction in respect of a trust to be carried out by a third party (such as the protectors in this case), “so long as this [was] subject to being set aside by the [c]ourt, and therefore re-exercised by the third party, in the event that the third party act[ed] in breach of duty”.

In its third and final set of written submissions, JBTC submitted that it would not be possible to sever the Protector Resolution Clause so as to enforce determinations on questions of fact but invalidate determinations on questions of law. Further, so far as JBTC was aware, the 2024 Trust Deed did not entrust any determination of fact or exercise of discretion to the protectors. As to whether the Protector Resolution Clause could operate in a manner where the protectors’ initial determination was capable of being overridden by a further determination by the court, JBTC observed that: (a) if the protectors’ determination was subject to the court reaching a different determination, the former was of limited value; and (b) there would be a lack of certainty if the protectors’ determination was only valid for so long as, and in so far as, the court did not reach a different determination. It may be that the value of the protectors’ determination in such circumstances lay in protecting the trustee from any liability for acting in accordance with that determination even if it was subsequently overturned by the court.

The YIC’s submissions

The YIC submitted that the Protector Resolution Clause vested the protectors with broad powers to resolve any ambiguities or conflicts in the administration or the interpretation of the terms of the Moss Trust.

However, the protectors’ determinations under the Protector Resolution Clause were not “conclusive” in the sense that they could not be reviewed by the court. Instead, the Protector Resolution Clause should be construed as giving the protectors “a primary role and broad powers in resolving conflicts and ambiguities concerning the administration and interpretation of the terms of the Moss Trust, while leaving intact the Court’s power to supervise the Protectors’ exercise of its powers and intervene as necessary”. This was because:

(a) While the Protector Resolution Clause conferred “absolute authorisation” on the protectors to resolve the said conflicts and ambiguities in their “sole and absolute discretion”, the court in Devin Jethanand Bhojwani v Jethanand Harkishindas Bhojwani [2026] 3 SLR 284 had held that the phrase “absolute discretion” did not preclude the court’s intervention in the exercise of a trustee’s powers and did not preclude claims by beneficiaries against trustees for breach of trust (at [60]). The same position should apply vis-à-vis protectors of a trust.

(b) The 2019 Modification (which introduced the Protector Resolution Clause) and all subsequent amendments to the terms of the Moss Trust (which retained the Protector Resolution Clause) included a clause recording the parties’ submission to the non-exclusive jurisdiction of the Singapore courts.

While a clause that sought to oust the jurisdiction of the court over a trust would be void, this head of public policy was narrowly applied. A clause “must purport to completely bar the jurisdiction of the Court before it is said to be an unenforceable and void ouster clause, and the Court should not be too ready to interpret clauses to have that effect”. The Protector Resolution Clause was valid, effective and enforceable because it did not seek to totally exclude the jurisdiction of the court and was thus not an ouster clause: (a) there was no reference to the protectors’ determinations pursuant to the Protector Resolution Clause being “final” or “conclusive”; and (b) the existence of the non-exclusive jurisdiction clause supported this view as “[t]he non-exclusive jurisdiction clause would be rendered otiose if the Protector Resolution Clause was intended to completely exclude access to the courts”.

Decision

Issue 9 should be summarily determined

I find that Issue 9 should be summarily determined and I disagree with any suggestion by JBTC that Issue 9 is unsuitable for summary determination following the claimants’ amendment to the original framing of the issue.

First, Issue 9 as currently framed is not materially different from its pre-amendment form: the crux remains whether the Protector Resolution Clause is valid and enforceable (“core issue”). The amendment simply added more focus to reflect the claimants’ interest in knowing whether Mr Jaeggi and Mr Benezra were validly empowered to make decisions under the Protector Resolution Clause “concerning the distribution of trust assets”. In my view (and contrary to JBTC’s argument about the inadequacy of the claimants’ pleadings (see [173] above)), Issue 9 arises because it is the claimants’ pleaded case that Mr Jaeggi and Mr Benezra had already made such a decision via the 28 Aug 2025 Letter, and that JBTC had, in breach of trust and its duties, refused to comply with that direction (see [57] and [58(f)] above). That said, the determination of Issue 9 ultimately turns on a determination of the core issue. JBTC had agreed that the core issue was suitable for summary determination, and rightly so. The position is no different with Issue 9:

(a) The determination of Issue 9 involves, in the first instance, a question of construction of the Protector Resolution Clause (ie, ascertaining the meaning and the legal effect of the clause), followed by a question of law as to whether, on its proper construction, the clause is valid and enforceable, including in the area of decisions of the protectors “concerning the distribution of trust assets”.

(b) The determination of Issue 9 does not turn on any disputed facts.

(c) The determination of Issue 9 will lead to savings of time and costs because (i) it will fully determine the claimants’ entitlement to their pleaded claim in OC 848 for a declaration that the Protector Resolution Clause is valid and enforceable, and (ii) it will go towards resolution of the claimants’ claim against JBTC for breach of trust and duties in allegedly refusing to comply with the alleged direction regarding distribution given by Mr Jaeggi and Mr Benezra in the 28 Aug 2025 Letter.

Second, I do not think that Issue 9 is rendered moot by the claimants having also placed Issue 7 before the court. By Issue 7, the claimants seek the court’s determination of which assets of the Moss Trust fell to be distributed and how such distribution was to be made after the Wife’s death pursuant to cl 4.3(v) of the 2024 Trust Deed. As the claimants explained, however, their position was that the court should first determine Issue 9, and that the court would only need to determine Issue 7 if Issue 9 was answered in the negative. As foreshadowed at [78] above, I accept the claimants’ submission on the sequence in which I should address these two issues. That being so, there is no prospect of Issue 9 being rendered moot by a prior determination of Issue 7.

Construction of the Protector Resolution Clause

I turn then to the substantive determination of Issue 9, beginning with the construction of the Protector Resolution Clause.

To recapitulate (see [39] above), the Protector Resolution Clause stated:

As its wording makes clear, the Protector Resolution Clause purports to empower (“absolute authorisation”) the protectors to determine (“resolve”) any and all disputes, disagreements and uncertainties (“conflicts and ambiguities”) arising in (a) the administration of the Moss Trust and (b) the interpretation of the terms of the Moss Trust.

Such determination by the protectors is also stated to be in their “sole and absolute discretion”. In my judgment, however, the use of this phrase vis-à-vis the protectors’ determinations of disputes, disagreements and uncertainties over the administration of the Moss Trust or the interpretation of its terms is a complete non sequitur. Discretion in the true sense of the word entails the freedom to choose between two or more permissible options. Thus understood, the determination of the disputes referred to in the Protector Resolution Clause does not involve the decision-makers (ie, the protectors) exercising their discretion because such determination is not about making a choice from a range of permissible outcomes. By way of illustration, a decision on the correct interpretation of a term in the trust deed cannot be said to be made in the exercise of discretion because the decision-maker must properly apply rules of construction to arrive at a single permissible outcome. Similarly, a decision on whether the trustee had properly administered the trust admits of only a binary answer that the trustee had acted either rightly or wrongly, which does not turn on the decision-maker’s exercise of discretion.

So, if the phrase “sole and absolute discretion” cannot sensibly and does not actually refer to the protectors exercising any discretion, what does the phrase mean? In general, the court presumes that the words used in a term are not intended to be redundant (Equation Recycling Pte Ltd v Leading Bio-Energy (S) Pte Ltd [2026] SGHC 126 at [91(e)]). In the present instance, in the context of (a) the wide-ranging scope of matters which the Protector Resolution Clause purports to empower the protectors to decide and (b) the emphasis in the clause on the “absolute” nature of that power (as evidenced by the use of the words “absolute authorisation”), I take the view that the phrase “sole and absolute discretion” is objectively intended to convey that the protectors’ determinations under the Protector Resolution Clause are final and conclusive in the sense that such determinations are not to be revisited or corrected by the parties and/or the court. I draw support for this view from the decision of the House of Lords in the Scottish case of Dundee General Hospitals Board of Management v Walker [1952] 1 All ER 896 (“Dundee General Hospitals”).

In Dundee General Hospitals, a testator gave a legacy of £10,000 to the Dundee Royal Infirmary with a stated proviso in his will that (at 898B–C):

It was held that despite the words “sole and absolute discretion”, this was not a case of the existence of a discretion in the true sense of the word, such as when trustees were given a discretion to pay or not pay money by way of maintenance of a beneficiary (Dundee General Hospitals at 903A (per Lord Morton) and 906E (per Lord Tucker)). Rather, the words manifested the testator’s intention that the trustees’ satisfaction or non-satisfaction as to the existence of the stipulated state of facts should be “final and conclusive and not subject to correction by a court of law which might take a different view from the trustees” [emphasis added] (Dundee General Hospitals at 900F–G (per Lord Normand); see also 903B–C (per Lord Morton) and 906F–G (per Lord Tucker)). The trustees were to be “the sole judges” of all the matters which they had to consider in carrying out the duty which the testator placed on them (Dundee General Hospitals at 904H (per Lord Reid) and 906F–G (per Lord Tucker)), even where those matters involved questions of law (Dundee General Hospitals at 900G–H (per Lord Normand) and 906F–G (per Lord Tucker)).

I will discuss Dundee General Hospitals in further detail at [210] et seq below. At this juncture, it suffices to emphasise that, as with the clause in Dundee General Hospitals, the stipulated determinations to be made under the Protector Resolution Clause do not involve the exercise of discretion by the stipulated decision-makers (ie, the protectors) and the only meaningful way to then interpret the phrase “sole and absolute discretion” in the Protector Resolution Clause is as purporting to make the protectors’ determinations final and conclusive in the sense I have described at [188] above. I am unable to accept the submissions of the claimants and the YIC that the Protector Resolution Clause did not provide for the protectors’ determinations to be final and conclusive because there was an absence of such express language in the clause. The absence of such express language is not determinative, particularly when, as in the present case, the intent for the protectors’ determinations to be final and conclusive was effected through the use of other phraseology (viz, “sole and absolute discretion”). Contrary to the YIC’s submission, I also do not think the provision in the 2019 Modification and subsequent deeds stating “Singapore law shall govern the construction and interpretation of this [instrument] and the parties hereby submit to the non-exclusive jurisdiction of the courts of Singapore” indicates that the protectors’ determinations under the Protector Resolution Clause were not intended to be final and conclusive. While I acknowledge that the non-exclusive jurisdiction clause sits somewhat oddly with the Protector Resolution Clause, to my mind, the disconnect actually suggests the parties’ cognisance that the Protector Resolution Clause was susceptible to invalidity and that there would inevitably be a need to resort to the courts to determine disputes and matters of construction of the terms of the Moss Trust.

I thus conclude that, on its proper construction, the Protector Resolution Clause purports to empower the protectors to finally and conclusively determine any and all disputes, disagreements and uncertainties arising in (a) the administration of the Moss Trust and (b) the interpretation of the terms of the Moss Trust.

As construed, three features of the Protector Resolution Clause stand out. First, the clause gives a general power to the protectors to sit in judgment over any and all disputes and disagreements which might arise between any combination of the Settlor, the trustee (ie, JBTC), the beneficiaries and even the protectors (as opposed to a specific power to merely determine a discrete, stipulated question). Second, the protectors’ power of determination of disputes extends over a wide range of matters concerning the Moss Trust if not all aspects of the Moss Trust (since the administration of the trust and the interpretation of its terms arguably cover every aspect of the trust). Third, the protectors’ determinations are intended to be final and conclusive and not subject to correction by the court.

Against this backdrop, the validity and enforceability of the Protector Resolution Clause turn on the following questions of law:

(a) Does a clause in a trust deed which purports to empower someone other than the court to conclusively construe the terms of the trust impermissibly oust the jurisdiction of the courts, such that the clause is void for being contrary to public policy?

(b) Does a clause in a trust deed which purports to empower someone other than the court to conclusively determine disputes over the administration of the trust impermissibly oust the jurisdiction of the courts, such that the clause is void for being contrary to public policy?

I proceed to consider and address these questions.

The relevant law: ousting the jurisdiction of the courts

I begin with a survey of the cases cited by the parties and the YIC.

(1) Raven

In In re Raven [1915] 1 Ch 673 (“Raven”), a testator bequeathed by his will a legacy to “the National Association for the Prevention of Consumption”. The will contained a clause by which the testator directed that (at 674):

As it turned out, there was no society whose name was merely “the National Association for the Prevention of Consumption”, but there was a society whose full name was “The National Association for the Prevention of Consumption and other Forms of Tuberculosis” (“Association”), which had constituted a branch whose full name was “The Leicester and Leicestershire Branch of the National Association for the Prevention of Consumption and other Forms of Tuberculosis” (“Branch”). The Association took the position that the court should decide which institution the legacy should be given to. The Branch desired the trustees to decide this question. The trustees sought the court’s determination of whether they had the power, under the clause, to decide the question.

Warrington J (as he then was) reasoned that a testator could not confer a legal right by giving a legacy and at the same time deprive the legatee of one of the incidents of that legal right, viz, having the court determine the question of whether that legal right was or was not to be enjoyed (Raven at 677). That question had to be determined by the court according to legal principles, but the clause sought to effect the contrary by having the trustees determine the question on such grounds as they thought fit (Raven at 677). Citing extensively from the Irish case of Massy v Rogers [1883] 11 LR Ir 409 (“Massy”) with approval, Warrington J held that it was contrary to public policy to attempt to deprive persons of their right of resorting to the court for the purpose of establishing their legal rights and concluded that the clause was unlawful and inoperative (Raven at 677–680).

It is instructive to consider Massy given Warrington J’s extensive reference to and reliance on that case. In Massy, a testator’s will contained the following clause (at 409):

The executors commenced an action for the execution of the trusts of the will and the administration of the estate. They contended that their previous decisions on questions of construction of the will (in accordance with which they had made certain payments) should be regarded, pursuant to the above clause, as conclusive upon the parties interested.

Chatterton VC found that the clause did not involve the vesting of a discretion in the executors in the administration of the estate, but rather, was an attempt by the testator to “reserve for the decision of his executors as a forum domesticum all questions upon the construction of his will, and to oust the jurisdiction of the ordinary tribunals to deal with them” (Massy at 416). However, the power which the testator sought to vest in the executors was “one which the law entrusts to Her Majesty’s Courts, which must be freely open to all her subjects” (Massy at 416). Citing the general principle that parties cannot by contract oust the jurisdiction of the courts, Chatterton VC held that, similarly, a testator could not do so by a stipulation in his will (Massy at 416–417). The clause was thus unlawful and inoperative (Massy at 417).

To my mind, two features of the clause in Massy stand out:

(a) First, in stipulating that the executors should decide “all differences of opinion as to [the testator’s] intention”, the clause purported to have disputes over the construction of the will determined by the executors. Indeed, this was how the executors and Chatterton VC interpreted the clause (see [201] and [202] above). It cannot be gainsaid, however, that the task of interpreting a will “properly belongs to the court” (Lynton Tucker, Nicholas Le Poidevin QC & James Brightwell, Lewin on Trusts vol I (Sweet & Maxwell, 20th Ed, 2020) (“Lewin on Trusts vol I”) at para 6-013), and the same position applies in respect of a trust deed.

(b) Second, the clause provided for the finality of the decision by someone other than the court on such disputes: where the executors agreed, their decision was stated to be “final”, and where they did not, the judgment of the umpire they appointed was stated to be non-appealable. Indeed, Chatterton VC alluded to the clause resulting in the courts not being “freely open” (Massy at 416).

Having regard to these two features, it is clear that the clause sought to exclude access to the courts for the determination of disputes over the construction of the will, when these were matters properly falling within the jurisdiction of the courts. In short, the clause purported to oust the jurisdiction of the courts.

In my respectful view, Chatterton VC was thus right to hold that the clause was unlawful and inoperative. Chatterton VC’s conclusion and reasoning are consistent with the position under Singapore contract law that contracts which oust the jurisdiction of the courts are contrary to public policy and void and unenforceable because the common law jealously guards the right of access to the courts (CKR Contract Services Pte Ltd v Asplenium Land Pte Ltd [2015] 3 SLR 1041 (“CKR”) at [17]–[18]).

Returning to Raven, while the matter which the clause in Raven purported to have the trustees decide, viz, “the identity of the institution intended to benefit”, was narrower in scope than that in Massy, it nevertheless entailed construing the (legacy-conferring) terms of the will. The clause in Raven also similarly provided that the trustees’ decision on the matter would be “final and binding on all parties”. Warrington J thus concluded that the clause was contrary to public policy for attempting to exclude resort to the courts for the establishment of legal rights and hence unlawful and inoperative. In my respectful view, Raven is consistent with Massy and was rightly decided.

(2) Wynn

In In re Wynn, decd [1952] 1 Ch 271 (“Wynn”), a testator’s will contained a clause which stated (at 272):

The sole trustee under the will had made a decision to treat the proceeds of sale of a part of the trust estate as capital. He later entertained doubts about the correctness of his action and sought the court’s determination of whether the sale proceeds should be apportioned between capital and income. The beneficiaries interested in capital contended that the trustee had already made a conclusive and binding determination of the matter pursuant to the above clause. The beneficiaries interested in income contended that the clause was void for being contrary to public policy in that it purported to oust the jurisdiction of the courts.

Danckwerts J (as he then was) considered that he was bound to hold, on the authority of Raven, that (Wynn at 278–279):

In my reading of this passage, Danckwerts J found the clause contrary to public policy for purporting to oust the jurisdiction of the courts, and hence “void and of no effect”, because of two dimensions of the clause. First, the clause referred to the trustees the determination of “all questions and matters of doubt arising in the execution of the trusts of [the] will”, which entailed “constru[ing] and control[ling] the construction and administration of … [the] will and the estate”. These matters, however, fell within the jurisdiction of the courts. Second, the clause “attempt[ed] to make [the trustees’] determination conclusive and binding upon all persons interested under the will”. I respectfully agree with Danckwerts J’s reasoning and conclusion in this regard, which, in my view, are consistent with the decisions in Massy and Raven.

(3) Dundee General Hospitals

I have earlier referred to Dundee General Hospitals (see [189]–[190] above), in which a testator gave a legacy of £10,000 to the Dundee Royal Infirmary with a stated proviso in his will that:

The trustees decided not to pay the legacy because they were not satisfied that, at the testator’s death, the Dundee Royal Infirmary had not been placed under the control of the State. The Dundee Royal Infirmary pursued a claim for payment of the legacy. The House of Lords unanimously affirmed the decision of the court below to dismiss the action.

The proviso was construed, having regard to the word “satisfied”, as making the gift contingent on the trustees’ “state of mind” about the existence of a particular state of facts at the testator’s death, and not on the existence in fact or in law of some objective state of control over the Dundee Royal Infirmary (Dundee General Hospitals at 899F (per Lord Normand), 902G (per Lord Morton) and 906D–E (per Lord Tucker)). Consequently, the duty of the trustees was simply to apply their minds honestly to a consideration of the question whether a certain event had or had not happened at the date of the testator’s death (Dundee General Hospitals at 903A (per Lord Morton)).

As alluded to at [190] above, the words “sole and absolute discretion” manifested the testator’s intention that the trustees’ satisfaction or non-satisfaction as to the stipulated state of facts should be final and conclusive (Dundee General Hospitals at 900F–G (per Lord Normand), 903B–C (per Lord Morton), 904H (per Lord Reid) and 906F–G (per Lord Tucker)). Nevertheless, the proviso did not exclude recourse to the court to challenge the validity of the trustees’ decision on the ground that they had considered the wrong question, had not applied their minds to the question, had perversely shut their eyes to the facts, or had not acted honestly or in good faith (Dundee General Hospitals at 905A–B (per Lord Reid) and 906G–H (per Lord Tucker)). No such grounds existed in the case. Instead, the allegation was that the trustees’ decision was unreasonable in the sense that no reasonable man could have reached that decision. Assuming (while reserving their position or expressing doubt on whether) reasonableness was a test of the validity of the trustees’ decision, the Law Lords held that the trustees’ conclusion was such as a reasonable man could have reached (Dundee General Hospitals at 901E–H (per Lord Normand), 903D–E (per Lord Morton), 905B–906B (per Lord Reid), 907A–C (per Lord Tucker) and 907H (per Lord Cohen)).

It should be noted that Massy, Raven and Wynn were not considered in Dundee General Hospitals. Regardless, in my view, the former trilogy of cases and Dundee General Hospitals are reconcilable. Unlike the clauses in Massy, Raven and Wynn, the clause in Dundee General Hospitals did not purport to confer any broad or general power on the trustees to determine the interpretation of the will or how the estate was to be administered. Rather, the clause in Dundee General Hospitals merely made a gift conditional on the trustees’ decision on a specific and discrete question of fact, with that decision being open to the court’s review on certain grounds in law. It is understandable that, in these narrow circumstances, the clause was not found to oust the jurisdiction of the courts.

(4) Tuck

In In re Tuck’s Settlement Trusts [1978] 1 Ch 49 (“Tuck”), a baronet made a settlement by which he put money in trust for “the Baronet for the time being if and when and so long as he shall be of the Jewish faith and be married to an approved wife”. The settlement contained the following definition of “an approved wife” (at 63C–D):

The trustees applied to the court for a determination of (a) whether the trust, particularly in relation to the conditions as to Jewish blood and faith in the definition of “approved wife”, was void in law for uncertainty, and (b) whether the clause making the opinion of a Chief Rabbi conclusive as to the facts on the relevant questions (“Chief Rabbi clause”) was void for purporting to oust the jurisdiction of the courts. At first instance, it was held that even if there was any uncertainty in law in the conditions attaching to the benefits under the trust, the settlor’s entrusting to a Chief Rabbi of any decision to resolve disputes or doubts on facts was not an ouster of the jurisdiction of the courts and cured any uncertainty, leaving the settlement valid. An appeal against that decision was dismissed by the English Court of Appeal but on grounds that differed among the three members of the court.

Lord Russell of Killowen held that there was no uncertainty in the description of “an approved wife” (Tuck at 64C–65D and 65F) and declined to rule on whether the Chief Rabbi clause had the effect of ousting the court’s jurisdiction (Tuck at 65E).

Eveleigh LJ held that there was no uncertainty in the expression “Jewish faith” because the settlor had effectively defined “Jewish faith” as the Chief Rabbi’s definition of the term (Tuck at 66A–B). The settlor had not left it to the Chief Rabbi to discover what the settlor meant or to provide a meaning for the expression used by the settlor (Tuck at 66B–C), and it was in any event doubtful that Dundee General Hospitals was authority on which the court would permit the Chief Rabbi to do so (Tuck at 66C).

Eveleigh LJ’s approach has been explained by the learned authors of Christopher Hare & Vincent Ooi, Singapore Trusts Law (LexisNexis, 2021) as follows (at para 2-110):

Finally, Lord Denning MR held that if there was any conceptual uncertainty in the provisions of the settlement, it was cured by the Chief Rabbi clause; but if the Chief Rabbi clause was inoperative, he would construe the settlement so as to hold that there was no conceptual uncertainty and that the settlement was thus valid (Tuck at 62F–G).

In holding that the Chief Rabbi clause was operative, Lord Denning rejected the appellant’s argument that, based on Raven and Wynn, the settlor had ousted the jurisdiction of the courts by entrusting the decision on whether a wife was of “Jewish blood” and “Jewish faith” to a rabbi instead of to the court (Tuck at 60H–61B). Lord Denning stated that those cases had to be “reconsidered in the light of Dundee General Hospitals” (Tuck at 61A–C). However, Lord Denning did not explain what in the reasoning or conclusions of the House of Lords in Dundee General Hospitals warranted “reconsider[ation]” (and in which respects) of the decisions in Raven and Wynn. In my respectful view, for the reasons set out at [214] above, Raven and Wynn are not inconsistent with and remain good law after Dundee General Hospitals. Indeed, further support for my view is found in Eveleigh LJ’s expression of “doubt” that Dundee General Hospitals “allow[ed] [him] to say” that the court would permit the Chief Rabbi to determine the meaning of terms in the will (Tuck at 66C) (see [218] above).

Lord Denning then went on to state in a long passage (Tuck at 61E–62E):

In my respectful view, there appear to be internal inconsistencies in this passage:

(a) On the one hand, the portions emphasised in italics appear to posit that, where a clause provides for a third party to determine the interpretation of the terms of a will, that determination cannot be reopened for errors of law, but notwithstanding that, such a clause does not oust the jurisdiction of the courts.

(b) On the other hand, the portion emphasised in bold reflects that the jurisdiction of the courts is ousted where the parties’ agreement seeks to “take the law out of the hands of the courts and put it into the hands of a private tribunal without any recourse to the courts in case of error of law”.

As Lord Denning cited in this passage his earlier decision in Lee v The Showmen’s Guild of Great Britain [1952] 2 QB 329 (“Lee”), it is instructive to consider that case. Lee concerned a challenge to the validity of a decision by the committee of an association. Denning LJ (as he then was) held that the jurisdiction of a private tribunal, such as the committee of the association in question, was founded on contract, such as the rules of the association to which all its members subscribed (at 341–342). As for the extent to which an agreement could leave a decision to a private tribunal without ousting the jurisdiction of the courts, Denning LJ stated (at 342):

In gist, Denning LJ opined in Lee that it was permissible for contracting parties to leave questions of law (and of fact) to the decision of a third party so long as they did not make the third party “the final arbiter on questions of law” and did not preclude “recourse … to the courts in case of error of law”. This position is consistent with that part of Tuck summarised at [223(b)] above.

It is possible to regard Massy, Raven and Wynn as cases where the settlor purported to make a third party “the final arbiter on questions of law” (since the clauses therein provided for the executors’ or the trustees’ construction of the terms of the will, which involves questions of law, to be final or conclusive), and in that sense, consistent with Denning LJ’s decision in Lee at 342 as to when a provision impermissibly ousts the jurisdiction of the courts. Indeed, Romer LJ expressly opined in Lee (at 354) that Raven and Wynn were “rightly decided”:

Notwithstanding that Massy, Raven and Wynn on the one hand, and Lee on the other hand, can be rationalised as not being inconsistent on when a provision will be found to impermissibly oust the jurisdiction of the courts, I think a question of principle is raised by Lord Denning’s reliance in Tuck (a case concerning a trust) on his earlier decision in Lee (a case concerning the contractually founded jurisdiction of a private tribunal): to what extent can or should contract law’s relative receptiveness towards contracting parties’ agreement for a third party to decide questions of law and/or fact pertaining to their contractual relationship apply in the trust context? The normative basis espoused in Lee (at 342) and Tuck (at 61E–62E) for why such third party determination clauses in contracts are permissible is that contracting parties should be held to their contractual bargain. However, this rationale does not transpose neatly or wholly where analogous provisions in trust deeds are concerned. Beneficiaries of a trust cannot be said to have agreed to the terms of the trust and should not be regarded as bound by those terms in the same way or degree as contracting parties are bound by the terms of their contract; and even more importantly, a “significant distinction between trusts and contracts” is that the court has a supervisory jurisdiction over the administration of trusts (Crociani v Crociani [2014] UKPC 40 (“Crociani”) at [36]). In my view, flowing from these differences, there is greater latitude in the contractual context for a clause to provide for someone other than the court to conclusively determine questions of law and/or fact than there is in the trust context, and the court must exercise caution when evaluating arguments for the permissibility of third party determination clauses in trust deeds by analogy to what is permissible under contract law principles. For these reasons, I do not accept the claimants’ attempt to justify the Protector Resolution Clause by relying on the validity of contractual clauses for final and binding expert determination.

As I have cited (at [226] above) the decision of the Judicial Committee of the Privy Council in Crociani, I should say for completeness that that case did not concern a clause for a third party to determine any question, but rather, concerned an application to stay proceedings on the ground that they were brought in breach of an exclusive jurisdiction clause contained in a trust deed. After referring to the principle that the onus is on a claimant who has brought a claim in court in breach of a contractual exclusive jurisdiction clause to justify the continuation of that claim, normally by establishing “strong reasons” for doing so (Crociani at [34]), Lord Neuberger (delivering the judgment of the Board) opined that it should be less difficult for a beneficiary under a trust to resist the enforcement of an exclusive jurisdiction clause in a trust deed than for a contracting party to resist the enforcement of such a clause in a contract (Crociani at [35] and [37]). Less weight should be given to an exclusive jurisdiction clause in a trust deed than to such a clause in a contract because (Crociani at [36]):

In my view, and as I have highlighted at [226] above, the considerations in Crociani at [36] are relevant to why the court should be cautious about an unattenuated application of contract law principles in considering when a third party determination clause in a trust deed is permissible and when it ousts the jurisdiction of the courts.

In any event, and returning to Lord Denning’s decision on the Chief Rabbi clause in Tuck (see [221]–[222] above), I do not think this decision forms part of the ratio decidendi of Tuck. The primary basis of the decision of Lord Russell and Eveleigh LJ was that the disposition under the settlement was sufficiently certain. In particular, I respectfully prefer Eveleigh LJ’s characterisation of the Chief Rabbi clause, viz, that the clause (a) merely provided for the Chief Rabbi’s opinion to form part of the definition of “an approved wife”, (b) did not call for the Chief Rabbi to construe any part of the terms of the settlement and (c) thereby did not involve an illegitimate ouster of the jurisdiction of the courts (see [218]–[219] above). On this characterisation, no question for the court arose, and no opinion from the court was necessary, as to the validity of the Chief Rabbi clause.

For these reasons, I do not regard Tuck as undermining, much less overruling, the decisions in Massy, Raven and Wynn, which remain good law.

(5) Harris (HC) and Harris (CA)

Harris v Lord Shuttleworth [1992] OPLR 151 (“Harris (HC)”) and Harris v Shuttleworth [1994] PLR 47 (“Harris (CA)”) concerned one Mrs Harris, who was an employee of a society and a member of the society’s pension fund. After she was dismissed from the society’s employment, she sought an immediate ill health pension under rule 19 of the rules of the fund (“rule 19”), which provided (Harris (CA) at [27]):

The trustees of the fund decided that Mrs Harris was not entitled to a pension under rule 19 because the termination of her employment did not constitute a retirement and the available medical evidence did not support the view that she was permanently incapacitated from office work. She then commenced an action against the trustees, claiming, inter alia, a declaration that she was entitled to a pension under rule 19.

At first instance, Moseley HHJ (sitting as a Deputy High Court Judge) construed rule 19 as conferring no discretion on the trustees. The trustees’ function under rule 19 was to consider whether there had been a retirement and whether that retirement had occurred by reason of incapacity, with their satisfaction of these matters (ie, “the state of mind of the trustees”) being “a condition” of a member’s entitlement to a pension under the rule (Harris (HC) at 157 and 158). Moseley HHJ held that, in this light, the court’s role was to determine whether the trustees had properly exercised the function entrusted to them in rule 19; if they had, their decision stood whether the court agreed with it or not, but if they had not, the appropriate course was for the court to remit the matter to the trustees so that they could properly exercise their functions (Harris (HC) at 158). The court’s review of the trustees’ decision was limited to ensuring that (a) the trustees had not acted ultra vires but had asked and considered the correct questions; (b) the trustees had not acted capriciously; and (c) the trustees had “[gotten] their law, including questions of construction, right” (Harris (HC) at 159–160).

The trustees’ counsel, however, sought to argue that rule 40 of the rules of the fund (“rule 40”) rendered the circumstances in which the court could intervene in the trustees’ decision “even narrower” than those identified by Moseley HHJ (set out at [232] above) (Harris (HC) at 160). Mrs Harris’ counsel countered that rule 40 was void for being a provision purporting to oust the jurisdiction of the courts (Harris (HC) at 160). Rule 40 stated (Harris (CA) at [34]):

Referring to Denning LJ’s statement of principle in Lee at 342 (see [224] above), Moseley HHJ opined that “[t]he principle renders void a provision only ‘to the extent’ that it purports to oust the jurisdiction of the courts in matters of law” (Harris (HC) at 161). Moseley HHJ was “prepared to assume” that rule 40 was void as being contrary to public policy “to the extent” that the third sentence of the rule purported to oust the jurisdiction of the courts in matters of construction, but “[saw] no reason why [the first sentence and the part of the third sentence of rule 40] which [made] the decision of the trustees conclusive on questions of fact should not be valid and enforceable” (Harris (HC) at 161). In Moseley HHJ’s view, the court could interfere with the trustees’ “conclusive” determination on questions of fact in the same circumstances which he had earlier identified in relation to rule 19 (set out at [232] above) (Harris (HC) at 161–163).

Moseley HHJ then proceeded to construe the words “retirement” and “incapacity” in rule 19, and found that the trustees had not erred in law in their construction of the words (Harris (HC) at 165–166). Moseley HHJ emphasised that because the condition in rule 19 was whether the trustees were satisfied of certain matters, his inquiry must concentrate on their state of mind and decision, and on whether or not they attained a proper standard in reaching that decision (Harris (HC) at 166). Moseley HHJ concluded that the trustees had done so on the facts and dismissed Mrs Harris’ claim.

On appeal, the parties did not challenge that part of Moseley HHJ’s judgment on the circumstances in which the court could intervene in the trustees’ decision. The English Court of Appeal observed that “[d]espite Rule 40”, the court “ha[d] control over the Trustees” but “[was] not a Court of Appeal from their decisions”; “the Judge’s decision on the limits of his task and thus of his jurisdiction was entirely correct” (Harris (CA) at [36]–[37]). Harris (CA) at [36]–[37] was cited by Park J in The Trustees of the Saffil Pension Scheme v Curzon [2005] EWHC 293 (Ch) as standing for the following proposition (at [24]):

The decision in Harris (CA) is otherwise not relevant for present purposes.

I make four points about the decisions in Harris (HC) and Harris (CA).

First, Harris (HC) affirmed the longstanding principle (established in Massy, Raven and Wynn) that a provision for the interpretation of the terms of a will or trust to be conclusively determined by someone other than the court seeks to oust the jurisdiction of the courts and is void for being contrary to public policy. Moseley HHJ expressly proceeded on the basis that the third sentence of rule 40 purporting to oust the jurisdiction of the courts in matters of construction was void for being contrary to public policy (Harris (HC) at 161 (see [234] above)). While Moseley HHJ went further to opine that a provision for trustees to conclusively decide “questions of fact” would be valid because it would not preclude the court from nevertheless intervening in the trustees’ decision within the limits he identified (Harris (HC) at 161–163 (see [234] above)), he did not extend this view to provisions for someone other than the court to conclusively determine the interpretation of the terms of a trust deed. The English Court of Appeal in Harris (CA) did not specifically comment on, much less disapprove, this aspect of the decision in Harris (HC).

Second, as regards Moseley HHJ’s finding that not all parts of rule 40 were void (Harris (HC) at 161 (see [234] above)), I accept in principle that such an approach may be taken where a clause comprises several distinct provisions, some of which have the effect of ousting the jurisdiction of the courts and some of which do not. Where a clause on its proper construction gives rise to such clear delineation, it is unobjectionable to find that the former but not the latter provisions therein are void for purporting to oust the jurisdiction of the courts. Indeed, such an approach would be consistent with the Singapore courts’ caution that the ground for finding a contract contrary to public policy for ousting the jurisdiction of the courts is a narrow one (CKR at [18]; Tay Shing Lee Eileen v Liang Ting Pang Jeffrey [2024] SGHC 261 (“Tay Shing Lee Eileen”) at [32] and [34]). Emphasising its narrow scope, this ground has been expressed as applying where there is “a total exclusion of recourse to the courts of law to adjudicate on one’s legal rights versus imposing conditions and limitations upon that recourse without altogether shutting out the courts under all circumstances” [emphasis in original] (Tay Shing Lee Eileen at [38]; see also CKR at [19]). The distinction drawn (between a clause that totally excludes recourse to the courts and a clause which merely imposes conditions upon that recourse) serves as an example of how the court applies this category of public policy narrowly. The underlying and fundamental point is that a clause must totally exclude recourse to the courts before it constitutes an ouster clause. In my view, this fundamental point also justifies the court taking the approach that, where a clause comprises distinct provisions, some of which have the effect of ousting the jurisdiction of the courts but some of which do not, only the former provisions within the clause would be considered contrary to public policy.

Third, in respect of rule 40 itself, however, I am less certain that the first sentence (viz, “[t]he Trustees shall be empowered conclusively to determine all matters, questions, and disputes touching or in connection with the Fund’s affairs and all claims thereon”) and part of the third sentence (viz, “[t]hey shall have the power to determine any question or doubt … relating to the Fund”) should be construed as allowing the trustees to determine no more than “questions of fact”, as Moseley HHJ appeared to hold (Harris (HC) at 161 (see [234] above)). This appears to gloss over the references to “disputes” and “doubts” relating broadly and generally to “the Fund”, which the sentences purported the trustees were to determine. Allowing the trustees (a) to conclusively determine disputes over the administration of a trust, goes beyond (b) requiring their satisfaction on a question of fact as a condition for a particular payment to be made. In Harris (HC), the operative rule at the crux of the action, viz, rule 19, only entailed the latter course. The legality of the former course, which is wide-ranging and arguably purports to usurp the court’s function of supervising the administration of the trust (see also Wynn at 278–279 as set out at [208]–[209] above), was not considered in Harris (HC) (or Harris (CA)). Notably, a finding that the provisions contained in the first and third sentences of rule 40 were void in their entirety would not change the conclusion in Harris (HC) (endorsed in Harris (CA)) that the trustees’ decision under rule 19 was capable of being reviewed by the court within limits.

Fourth, for completeness, albeit not relevant to the present case, Harris (HC) includes error of law as a ground for interfering with the trustees’ decision under rule 19, in contrast to the more limited grounds for intervention set out in Dundee General Hospitals (see [213] above) in relation to a similar provision (Harris (HC) at 160, 162 and 163). This appears to have been endorsed in Harris (CA) (at [36]–[37]).

(6) Creasey

In Creasey v Sole [2013] EWHC 1410 (Ch) (“Creasey”), a testatrix provided by her will for her interest in “Michael’s Land” to be given to one of her sons, Michael. “Michael’s Land” was defined in cl 10.1.1 of the will, and cl 10.2 provided that the interpretation of the expression “Michael’s Land” (and certain other terminology) “shall be fixed by reference to this clause 10 but in the interpretation thereof of my Trustees whose decision shall be final [sic]”. Morgan J observed that since the decisions in Massy, Raven and Wynn, “the courts [had] become more familiar with clauses providing for matters in dispute to be determined by independent experts. Such experts can be given jurisdiction to decide both matters of fact and matters of law although it will commonly be the case that the court has a concurrent jurisdiction on matters of law. These considerations may affect the attitude of the court to a clause like clause 10.2” (at [66]). In the event, however, Morgan J declined to express a concluded view on the legal effect of cl 10.2 because the executors of the will took the position that they did not have the power to make a final determination on the interpretation of the definitions and wished the court to decide all points arising as to the interpretation and application of those definitions, and the defendants (who were the testatrix’s children) were content for the court to determine those matters (at [67]). Morgan J held that he had jurisdiction to determine the matters arising as to the definition “whether that [was] because the relevant part of clause 10.2 [was] void or because [he had] concurrent jurisdiction with the executors or because the executors [were] seeking the assistance of the court in the relevant respects or because the executors [were] surrendering their power or discretion to the court” (at [67]). In my reading of this last statement, there is recognition that cl 10.2 was potentially void for purporting to oust the jurisdiction of the courts on a matter of construction of the will. Beyond that, I do not draw further guidance from Creasey since no opinion was expressed on the ultimate legality of cl 10.2.

(7) Conclusion

Having canvassed the foregoing case law, I summarise the salient legal principles (which, in my view, are equally applicable under Singapore law) as follows:

(a) A provision in a will, settlement or trust deed purporting to oust the jurisdiction of the courts to determine a person’s legal rights under the relevant instrument is contrary to public policy, and thereby void and unenforceable.

(b) It is “a matter of degree” when a provision will be found to oust the jurisdiction of the courts (Snell’s Equity at para 29-040).

(c) A provision purporting to confer a wide and general power on someone other than the court to conclusively construe the terms of the will, settlement or trust will be found to oust the jurisdiction of the courts (Massy at 416–417; Raven at 677–680; Wynn at 278–279; Tuck at 66C (per Eveleigh LJ); Lee at 354 (per Romer LJ); Harris (HC) at 161). The task of construing such instruments properly falls within the province of the courts (Lewin on Trusts vol I at para 6-013).

(d) A provision purporting to confer a wide and general power on someone other than the court to conclusively determine disputes over the administration of an estate, settlement or trust will also be found to oust the jurisdiction of the courts (Wynn at 278–279). The task of controlling the administration of an estate, settlement or trust properly falls within the supervisory jurisdiction of the courts (Wynn at 278–279; Crociani at [36]). A wide clause like that in Wynn – for “all questions and matters of doubt arising in the execution of the trusts” to be conclusively determined by someone other than the court (see [206] above) – would, if valid, “overrid[e] the jurisdiction of the court in many respects” (Lewin on Trusts vol I at para 6-013).

(e) It is possible that the jurisdiction of the courts may not be ousted where a provision seeks to confer only a specific power on some person to (conclusively) determine a discrete question of fact (see generally Dundee General Hospitals; Harris (HC) at 157–158 and 161–163). In any event, the court may intervene in such a determination, within limits (as to which, see [213] and [232] above).

(f) Where a clause comprises several distinct and clearly delineated provisions, some of which have the effect of ousting the jurisdiction of the courts and some of which do not, it is unobjectionable for the court to find that the former but not the latter provisions within the clause are void for purporting to oust the jurisdiction of the courts (Harris (HC) at 161) (see [239] above).

It follows that the questions of law engaged by Issue 9, as set out at [194] above, are answered in the affirmative.

Application of legal principles to the facts

I have found that the Protector Resolution Clause purports to confer a broad and general power on the protectors to finally and conclusively determine disputes, disagreements and uncertainties over the administration of the Moss Trust and the interpretation of its terms (see [192]–[193] above). In line with the legal principles distilled at [243(c)], [243(d)] and [244] above), the Protector Resolution Clause is therefore contrary to public policy for ousting the jurisdiction of the courts, void and unenforceable.

In particular, the claimants’ interest in Issue 9 lies in Mr Jaeggi and Mr Benezra’s alleged determination of which assets of the Moss Trust fell to be distributed and how such distribution was to be made after the Wife’s death. Such a determination would turn on the construction of cl 4.3(v) of the 2024 Trust Deed. In essence, therefore, Issue 9 asks if the Protector Resolution Clause validly empowered Mr Jaeggi and Mr Benezra to conclusively determine the construction of cl 4.3(v) of the 2024 Trust Deed. In my view, the Protector Resolution Clause purported to empower Mr Jaeggi and Mr Benezra to do so, but in so purporting, ousted the jurisdiction of the courts. This exactly illustrates why the Protector Resolution Clause is void and unenforceable. Issue 9 is answered in the negative.

For completeness, to the extent the parties and the YIC suggested that the Protector Resolution Clause could somehow be valid because the court could, regardless of what the clause stated, decide de novo on any matter already determined by the protectors, I disagree. First, based on my review, the authorities do not support such a proposition. Second, the argument side-steps identification of the legal basis on which the court would be determining the matter de novo. There was no suggestion by the claimants that the protectors had surrendered the exercise of their purported power under the Protector Resolution Clause to the court. It would thus be only and precisely because the Protector Resolution Clause is void that the court would determine the matter wholly and afresh without any regard for the prior purported determination of the protectors.

Issue 7

Issue 7 asks: Was JBTC obliged, following the death of the Wife, to distribute the assets of the Moss Trust, being shares in the Investment Companies, in equal shares to the trustee of the Amir Trust and the trustee of the Nat Trust pursuant to cl 4.3(v) of the 2024 Trust Deed?

Issue 7 falls to be determined given that Issue 9 has been answered in the negative.

The claimants’ case

The claimants submitted that Issue 7 was suitable for summary determination. First, the answer to Issue 7 went directly to the claimants’ entitlement to the order sought by them in OC 848 for JBTC to specifically perform its obligation to distribute the assets of the Moss Trust pursuant to cl 4.3(v) of the 2024 Trust Deed (see [59(h)] above). Second, no dispute of fact was raised by Issue 7 as JBTC simply made no admission as to the claimants’ interpretation of cl 4.3(v).

The claimants submitted that cl 4.3(v) of the 2024 Trust Deed required JBTC to divide the balance of the “Trust Fund” into two equal shares to be distributed to the Amir Trust and the Nat Trust respectively. Clause 1.16 read with the First and Fifth Schedules defined the “Trust Fund” as comprising the shares of the Investment Companies as well as US$1,000 in cash. It followed from a plain reading of cl 4.3(v) that, upon the Wife’s death, JBTC was obliged to transfer the shares of the Investment Companies and US$1,000 in cash in equal shares to the Amir Trust and the Nat Trust.

It was untenable for JBTC to argue that, because cl 4.3(iii) of the 2024 Trust Deed referred to any “trophy residence” being administered or distributed in accordance with cl 4.3(v), cl 4.3(v) obliged JBTC to transfer such real estate properties held by the Property Investment Companies in specie. As the Moss Trust indirectly held all of its real estate properties through the Property Investment Companies, and cl 4.3(v) referred to the distribution of the Trust Fund (ie, the shares in the Investment Companies), it followed that when cl 4.3(iii) referred to the distribution of any “trophy residence” in accordance with cl 4.3(v), cl 4.3(iii) was referring to the distribution of the shares of the Property Investment Companies which held such real estate properties. This interpretation accorded with common sense. Real estate property owned by a company could be conveyed by way of a direct sale or by a sale of the shares of the company. By parity of reasoning, any “trophy residence” in the present case could be distributed by distributing the shares of the Property Investment Company that owned such real estate property. If cl 4.3(v) provided for the distribution of only any “trophy residence” referred to in cl 4.3(iii), one would expect cl 4.3(v) to specifically refer to such “trophy residence” or to cl 4.3(iii), but cl 4.3(v) did not do so.

JBTC’s case

JBTC submitted that there were two possible interpretations of cl 4.3(v) of the 2024 Trust Deed.

The first interpretation was that cl 4.3(v) did not apply to the totality of the assets of the Moss Trust, but only to those “directed” under cl 4.3. Insofar as the assets “directed” were concerned, this arguably related to cl 4.3(iii), which provided for the administration and management of “trophy residences” and referred directly to cl 4.3(v). Reading cll 4.3(iii) and 4.3(v) together, at the Wife’s death, “any such residence” was to be divided and distributed. This could be construed as a direction to JBTC to strip out the “trophy residences” from the Property Investment Companies (“Stripping Out Direction”) and to administer them in accordance with cl 4.3(v) while retaining the shares in the Investment Companies and any other assets held under the Moss Trust. A construction which included the Stripping Out Direction avoided a potential difficulty which could arise if the Property Investment Companies held both a “trophy residence” and some other property. The term “trophy residence” was not defined in the 2024 Trust Deed or earlier instruments, and JBTC “require[d] clarity and direction” as to what this meant.

The second interpretation was that cl 4.3(v) of 2024 Trust Deed applied to the totality of all assets of the Moss Trust and the phrase “remaining and directed under this Clause 4.3” should be read broadly and included all sub-sections of cl 4.3, including cl 4.3(i) which referred to the “entire Trust Fund”. On this interpretation, JBTC was required to distribute shares in the Investment Companies to the Delaware Trusts.

JBTC submitted that the drafting history of cl 4.3(v) of the 2024 Trust Deed was pertinent. Clause 4.3(v) was first introduced by way of cl 3 of the 2019 Modification (see [25]–[26] above). JBTC suggested that as it had only “acknowledge[d] the modifications” in the 2019 Modification, the Settlor’s intentions were more relevant for purposes of interpretation. The chronology and contemporaneous correspondence leading up to the 2019 Modification showed that:

(a) By an e-mail dated 18 October 2018 from the Settlor’s representative to JBTC, JBTC received an undated Memorandum of Wishes signed by the Settlor, which stated, inter alia:

(b) By an e-mail dated 30 January 2019 from the Settlor to JBTC and others, the Settlor stated: “in case I decided to become a US person or Madlen passes away all assets of Moss will be equally distributed to the two trust[s]” [emphasis added].

(c) By an e-mail dated 21 March 2019 from JBTC to the Settlor, JBTC recorded its representatives’ discussion with the Settlor that the terms of the Moss Trust should be amended such that “the Moss trust should essentially hold only capital for Mrs Moss during her lifetime. On her death, the capital should be distributed to the two US trust[s]” [emphasis added].

(d) By an e-mail dated 16 May 2019 from the Settlor’s legal counsel, one Ms Brittain, to JBTC (copied to the Settlor, among others), Ms Brittain stated: “Upon Madlen’s death, if not before, the trust will be distributed 50:50 to two trusts that are designed for Dr. Mossanen’s children. He wants the $1,000,000 outright bequest…but the remainder will go into two separate trusts that are “Qualified Trusts” as defined under the terms of the Singapore trust” [emphasis added].

(e) By an e-mail dated 12 July 2019 from Ms Brittain to the Settlor (copied to JBTC and Mr Amir Mossanen), Ms Brittain stated, with reference to the draft 2019 Modification at the time: “As you see, your trust goes to the 2 [Delaware] trusts at Madlen’s passing, whether or not Settlor survives” [emphasis added].

JBTC stated that it would “stand guided” by the court’s findings and determination on the interpretation of cl 4.3(v) of the 2024 Trust Deed.

Decision

Issue 7 should be summarily determined

I accept that Issue 7 should be summarily determined for the reasons given by the parties.

Construction of cl 4.3(v) of the 2024 Trust Deed

It was common ground between the parties that cl 4.3(v) of the 2024 Trust Deed called for the distribution of the assets of the Moss Trust to the trustee of the Delaware Trusts upon the Wife’s death. The pertinent question was which assets fell to be distributed and how such distribution was to be made.

In my judgment, cl 4.3(v) of the 2024 Trust Deed required JBTC, following the death of the Wife, to distribute all of the assets of the Moss Trust in equal shares to the trustee of the Amir Trust and the trustee of the Nat Trust, and this entailed distributing the shares in the Investment Companies to the trustee of the Amir Trust and the trustee of the Nat Trust. I elaborate.

It is uncontroversial that when interpreting a provision of a trust deed, the text of the provision, considered in its context, is of first importance (HSBC Institutional Trust Services (Singapore) Ltd v Quarz Capital Asia (Singapore) Pte Ltd [2024] SGHC 153 at [25]–[26]). I thus begin with the text of cl 4.3(v) of the 2024 Trust Deed (see [37] above), which is reproduced again:

The other sub-clauses of cl 4.3 of the 2024 Trust Deed provided for JBTC to apply for the Wife’s benefit and/or to distribute to the Wife the income and/or capital of the Trust Fund (while the Wife was alive) in certain scenarios (see [37] above). Against this context, the phrase “then any and all of the balance of the Trust Fund remaining and directed under this Clause 4.3, if any” in cl 4.3(v) simply refers to the entire balance of the Trust Fund after taking into account any applications and/or distributions of the Trust Fund that may have been made under the other sub-clauses of cl 4.3. As it is the entire balance of the Trust Fund which had to be distributed to the trustee of the Delaware Trusts, it follows that the shares in the Investment Companies (which formed part of the Trust Fund pursuant to the Fifth Schedule (see [38] above)), and not just select real estate properties held by the Property Investment Companies, had to be distributed.

I do not think this interpretation is contradicted by the last sentence in cl 4.3(iii) of the 2024 Trust Deed, which stated:

I accept that the phrase “any such residence” referred to any “trophy residence” which was “directly or indirectly, a part of the Trust Fund”, as stated in the opening lines of cl 4.3(iii) (see [38] above). In my view, read in context with the rest of cl 4.3, the last sentence in cl 4.3(iii) simply serves a belt-and-braces function of making clear that trophy residences were not exempt from being distributed as part of the entire balance of the Trust Fund under cl 4.3(v). A trophy residence obviously refers to a real estate property. Beyond that, it is unnecessary to determine which real estate properties forming part of the Trust Fund were “trophy residences”. This is because none of the real estate properties forming part of the Trust Fund were “directly” held trust assets; they were “indirectly” held through the Property Investment Companies. Under cl 4.3(iii) read with cl 4.3(v), the “indirectly” held real estate properties (whether trophy residences or not) were to be distributed along with the entire balance of the Trust Fund. Notably, the Property Investment Companies held other assets in addition to the real estate properties (see [41(b)] and [41(c)] above). In such a situation, cll 4.3(iii) and 4.3(v) operate in harmony to require the distribution of the shares in the Property Investment Companies as that would ensure in one fell swoop the distribution of all the assets “indirectly” held by the Property Investment Companies, as part of the distribution of the entire balance of the Trust Fund.

I am fortified in my interpretation of cll 4.3(v) and 4.3(iii) of 2024 Trust Deed by the contemporaneous communications between the Settlor and JBTC about the intended amendments to the 2016 Trust Deed, which culminated in the 2019 Modification introducing cl 4.3(v) into the terms of the Moss Trust (see [257] above). Extrinsic evidence is admissible as part of the contextual approach to the interpretation of terms where it “is relevant, reasonably available to all the contracting parties and relates to a clear or obvious context” and goes towards proof of what the parties objectively agreed upon (Sembcorp Marine at [34]); this approach has also been applied in the interpretation of trust documents (The Ngee Ann Kongsi v Teochew Poit Ip Huay Kuan [2019] SGHC 256 at [32]). The said communications between the Settlor and JBTC satisfy these criteria. They show that the Settlor intended by cl 4.3(v) for the entire balance of the Trust Fund to be distributed to the Delaware Trusts after the Wife’s death. To be clear, as it was JBTC that exercised its power of amendment to make the amendment in the 2019 Modification introducing cl 4.3(v) (see [140(d)] above), I take the view that it is JBTC’s objective intention behind the amendment which is relevant. That said, as the trustee, JBTC would have had regard to the wishes of the Settlor. And, more critically, at the end of the exchange cited by JBTC at [257] above, (a) JBTC sent an e-mail reply to Ms Brittain (copied to the Settlor, among others) dated 17 July 2019 confirming that JBTC had “[n]o comments”, to which (b) Ms Brittain replied on the same day stating: “Well, that’s a relief. Thank you. I will send executed agreement right away”. In my view, this exchange indicates that JBTC shared the objective intention for cl 4.3(v) to provide for the entire balance of the Trust Fund to be distributed to the Delaware Trusts after the Wife’s death.

I therefore conclude that cl 4.3(v) of the 2024 Trust Deed required JBTC, following the death of the Wife, to distribute all of the assets of the Moss Trust in equal shares to the trustee of the Amir Trust and the trustee of the Nat Trust, and this entailed distributing the shares in the Investment Companies to the trustee of the Amir Trust and the trustee of the Nat Trust.

Observations on cl 3.2(iii) of the 2024 Trust Deed

For completeness, I note that cl 3.2(iii) of the 2024 Trust Deed stated:

The parties made no submissions on cl 3.2(iii) of the 2024 Trust Deed, and did not suggest that it affected the interpretation of cl 4.3(v), much less that it detracted from the parties’ joint premise that the interpretation of cl 4.3(v) called for the distribution of assets of the Moss Trust to the trustee of the Delaware Trusts upon the Wife’s death (the only issue being which assets fell to be distributed and how such distribution was to be effected). In the absence of submissions from the parties, it is not appropriate for me to venture an interpretation of cl 3.2(iii), and I confine myself to the following observations.

A term to the effect of cl 3.2(iii) of the 2024 Trust Deed was present in the Original Trust Deed (cl 3.2), at which time it was provided that distributions to the Children would only be made after both the deaths of the Settlor and the Wife (see [8] above). This term remained materially unchanged in the successive amended trust deeds even after the 2019 Modification introduced cl 4.3(v).

However, another term of similar import was amended after the 2019 Modification introduced what became cl 4.3(v) of the 2024 Trust Deed. To elaborate, cl 4.11 of the Original Trust Deed provided that:

This provision continued to appear in cl 4.9 of the 2016 Trust Deed.

On 27 November 2019, JBTC sent Ms Brittain an e-mail with a draft of the 2020 Trust Deed, which still contained this provision (now in cl 4.8). On 24 December 2019, Ms Brittain sent an e-mail to JBTC pointing out that cl 4.8 of the draft 2020 Trust Deed needed to be revised:

On 6 January 2020, JBTC sent an e-mail to Ms Brittain with a revised draft of the 2020 Trust Deed in which cl 4.8 was marked up as follows:

The provision in this amended form ultimately appeared as cl 4.8 in the (executed) 2020 Trust Deed and the 2024 Trust Deed.

However, as mentioned at [269] above, cl 3.2(iii) of the 2024 Trust Deed remained unchanged. I leave the parties to consider whether they may wish to pursue rectification or amendment of cl 3.2(iii) of the 2024 Trust Deed. In any event, for the reasons stated at [267]–[268] above, I have not let this provision affect my determination of Issue 7.

Conclusion

In summary, I find that:

(a) Issues 1, 3 (as reformulated), 6, 8, 9 and 7 are suitable for summary determination (see [91], [119], [147], [155], [181]–[183] and [259] above).

(b) In respect of Issue 1, it is an implied term of the 2017 Amendment that if the Wife refused to accept the power of amendment, the Settlor would have a limited power to amend the terms of the Moss Trust for the sole purpose of vesting the power of amendment in another person (see [97]–[105] above). I have referred to this implied term as the Implied Term (2017 Amendment) (see [103] above).

(c) Issue 2 does not arise given my finding on Issue 1 (see [107] above).

(d) In respect of Issue 3, the Settlor had exercised his power under the Implied Term (2017 Amendment) in making the 2019 Modification such that the 2019 Modification validly vested the power of amendment in JBTC (see [117], [139] and [141] above). In addition, the Other Amendments (defined at [138(b)] above) were validly made by JBTC by way of the 2019 Modification (see [140] and [141] above).

(e) Issues 4 and 5 do not arise given my findings at [(d)] above (see [144] above).

(f) Issue 6 is answered in the affirmative: the current terms of the Moss Trust are set out in the 2024 Trust Deed (see [148] above).

(g) In respect of Issue 8, Mr Jaeggi and Mr Benezra were validly appointed as members of the Committee, ie, as protectors of the Moss Trust (see [157]–[159] above).

(h) Issue 9 is answered in the negative: the Protector Resolution Clause is contrary to public policy for ousting the jurisdiction of the courts, void and unenforceable (see [245]–[246] above).

(i) Issue 7 is answered in the affirmative: cl 4.3(v) of the 2024 Trust Deed required JBTC, following the death of the Wife, to distribute all of the assets of the Moss Trust in equal shares to the trustee of the Amir Trust and the trustee of the Nat Trust, and this entailed distributing the shares in the Investment Companies to the trustee of the Amir Trust and the trustee of the Nat Trust (see [260]–[266] above).

Last but not least, I record my appreciation to the YIC, Ms Jennifer Lim, for the assistance rendered through her articulate written and oral submissions on Issue 9.