The writer is a partner at law firm Maurice Turnor Gardner
Annual meetings of trustee boards are normally quite sedate affairs, but at one I attended recently the discussion took an unexpected turn: the future of the family’s trusts.
The background to the establishment of these trusts is not particularly unusual. The settlor (now long dead) had taken over the family business, turned it into a considerable empire and set up two trusts in an offshore financial centre to secure his strategic shareholdings. He divided his shares between the two trusts: one for the elder child and their descendants, the other for the younger and their descendants.
The settlor had embraced the concept of a trust through which the business would be controlled, but what was unusual was that the settlor had recognised at the outset that there should be separate trusts for his children rather than one for both. The siblings were very different personalities and the settlor believed that if they were to “share” a trust, conflict might arise between them. Each trust was an investor in the family business and, with a clear shareholders’ agreement, a strong message of continuity and stability was delivered to the market and to the employees.
The settlor had also set up separate trustee boards for the two families. While there was originally some scepticism and suspicion between the two sets of trustees, they have worked together as custodians of the family business and have overseen an impressive transformation of the fortunes of the trusts. The family business was merged with another, the shares are now quoted and the trust generates remarkable returns.
My meeting was with the trustees of one of the trusts and after dealing with the formal business, such as accounts, we started discussing important questions about the trust: should the shareholding in the family business controlled by this set of trustees be sold? Should this trust’s structure continue in its current form? What about geopolitics and how it could affect the beneficiaries? Should the trust be moving onshore to the US? Tricky questions for the trustees to answer.
The questions are fuelled by the fact that younger generations in the families have no or very little emotional attachment to the business. Some never met their grandfather so have no sense of the history and the struggle expended in building the business. Some would prefer to invest in more sustainable businesses; others would like to leave their siblings and cousins behind to do their own thing.
The professional advisers deferred to the trustees when asked about selling the shares: this is definitely one of those questions for those who have expertise in investment matters.
Geopolitics is the great buzzword of the decade, but the law governing a trust and the physical location of the trustees themselves have always been a consideration for trustees. Whether it was Saudis being kept in the Ritz-Carlton or Russians’ assets being seized by Vladimir Putin, (geo)politics can affect trusts, their settlors and their beneficiaries. Well-advised trustees have had these threats on their radar. Similarly, global reputation counts: the reputation of some jurisdictions has been sullied (not always deservedly), which can undermine the credibility of the structure.
We reviewed the cohort of beneficiaries and considered whether we should move the trust because of the drift of many towards the US. This trust has little connection with Europe and no connection with Asia, so there would be no sense in moving it to the Channel Islands or Singapore. The countries to which it is exposed through the beneficiaries’ residence include the US, but moving into a high-tax jurisdiction would require an expensive forensic analysis of the consequences, including whether the move could be reversed. The recommendation to do nothing at this juncture is probably the wisest.
Changing the structure itself, however, is certainly possible and may well be prudent. Trusts are flexible and a well-drafted entity will have the capacity to adapt. For the lifetime of the settlor’s children, it is unlikely that the overall shape of the arrangements will change.
But once a sibling has died, and if co-investing in the family business is no longer a feature because the trustees decide to exit the business or the holding has been diluted, I anticipate the trustees will be under pressure from the next generation to split the trust fund into shares for each of the members of that generation. The original purpose of retaining the family business in trust and consolidating the ownership will have evaporated.
I also suggested that separating the families would head off potential disputes. Tensions exist in all families which can be disguised yet play out in discussions around the trusts. Different members of the family will have views on how the trustees should be investing the trust monies and how the funds should be distributed among the beneficiaries.
The trust has a life expectancy of more than 300 years. Once its original purpose of securing control of the family business no longer has merit, dividing the assets between separate trusts for family groups should not be characterised as undermining the longevity of the trust. Splitting the assets in a controlled way may well be the answer to securing the survival of the settlor’s original fortune for the benefit of future generations.