Money, particularly wealth and loss of it, is a prominent feature of the regular and digital press. Money, or the lack of it, is also at the heart of many novels: cupidity, excess, impecuniosity, debt, fraud and financial mismanagement are major themes. Dickens, in particular, having endured a period of penury took money as a theme in much of his writing.
David Copperfield Senior is evidently a well-to-do man. However David Copperfield Junior as a young child has to endure privations with no financial support following the death of his father then second marriage and death of his mother. By leaving his estate to his wife without settling a trust she is easy prey for the Murdstones, with David Copperfield left penniless. Both the best and the worst financial management are portrayed throughout and we, through the characters in the novel, are given insight into the good and ill effect of money.
A recent case before the Royal Court of Guernsey, In the matter of the PQ Employer Financed Retirement Benefit Plan GRC013, has the elements of a modern novel. We do not need to know the identity of the parties to find the facts of the case interesting. Neither would it be in the interest of the children who are at the heart of this case for them to be identifiable.
In a short but succinct judgment (due to the application being unopposed) we are told that an individual identified only as PQ, a famous and very high-level professional footballer who has had a glittering career throughout the world where football is played, has fathered four children by three different women. Two are children of his marriage. Two are his natural children, identified as B and C. It was claimed that inadequate support and maintenance had been provided for B and C. Claims were brought in England, orders were made by consent for lump sums and periodical payments to be made by PQ, and undertakings were given by PQ, his wife and the two mothers to create two sub funds out of half the trust fund of the PQ Trust (a Guernsey law trust of which PQ is the sole beneficiary during his lifetime) for the benefit of B and C and to consent to any order of the Royal Court to put those arrangements into effect.
Seemingly inevitably, PQ did not comply with the undertakings.
In answering the claims now made before the Royal Court, PQ failed to provide information. Despite having had a full career (we are told he recently retired at the age of 36) he seems unable to pay the agreed support for B and C. Details of his assets were unforthcoming. The trustees of the Plan warned, and it was agreed, that relying on newspaper reports that estimate wealth and assets is inherently dangerous, but as PQ failed to engage in the process the information provided to support B and C’s claims was preferred to the unsupported and sketchy information provided by PQ.
It has long been the case that where there is a paucity of Guernsey decisions (as was the case here) close regard will be paid to English and Jersey authorities. Accordingly the Mubarak case, a Jersey decision where a recalcitrant husband failed to comply with matrimonial provision orders was considered very helpful. Having agreed to be bound by an English order it was held he could not renege on it for the Jersey proceedings. PQ had likewise agreed to be bound by the English order.
The Royal Court had to take into account that the Plan potentially benefited other beneficiaries. Taking Mubarak as its authority, approval was given for the variation of the Plan, with the creation of sub trusts over half the trust fund with B and C’s sub trusts receiving 45% each to provide the agreed support. The remainder was put in a sub trust for the benefit of minor and unborn beneficiaries.
If Dickens were writing today the fortune of a footballer and a life lived in the public gaze may have given him inspiration. What is clear is that where dependants have needs to be met and there is submission to the jurisdiction of a court in relation to claims a trust cannot be used to defeat those claims and instead will protect them, but a court will also look at the wider picture to ensure that where other possible beneficiaries should be considered they do not in giving that protection lose out.