By Angela Calnan, Senior Associate, and Bethan Boscher,
Associate, Collas Crill, GuernseyALTHOUGH NEW TO GUERNSEY,
operating company on the PTC board. willing to register assets in the name of the
interest in foundations is high For many clients, however, the estate foundation than they have been to register
and since January several have planning discussion falls at the last in the name of trustees of a trust.
made it onto the register. There are many hurdle with PTCs. The PTC’s shares
potential uses for the Guernsey foundation need to be owned by a trust and, even completely avoids the need for the purpose
and below we illustrate just one of them. though the patriarch can take some trust/enforcer layer thereby reducing the
In the Middle East foundations comfort from ultimate control as administration costs and increasing simplicity.
have traditionally been thought of as a enforcer of the purpose trust, for clients
In Guernsey the law allows foundations to
philanthropic vehicle but that is changing. who are unfamiliar with trusts this is be used for certain purposes; in this case for
Lawyers, wealth planners and trust service often a deal breaker.
the sole purpose of acting as trustee of family
providers (TSPs) have often struggled to
trusts which in turn hold the family’s assets.
Being an ‘orphan’ vehicle, the Although it is early days, the
concept of a trust, particularly where the foundation does not require shareholders indications are that the uses of Guernsey
family’s ‘golden egg’ - the business - is to so a trust is not needed to hold its shares. foundations are likely to be wide ranging
It also has separate legal personality (like and imaginative. The foundation
Some success has been seen in using a company), which many Middle Eastern offers clients a simple and practical
private trust companies (PTCs) to enable families feel more comfortable with. In solution for succession planning and is
the patriarch and the wider family to hang addition, the land registries and banks particularly useful for those clients who
on to control by mirroring the board of the of non-trust jurisdictions are also more are unfamiliar with trusts.
KHALID IS SEVENTY.
He and his family are Muslim. He is a self- wealth planners about trusts and about moving assets out of the
made man and keen to instil the same values in his children as his Sharia spotlight in order to achieve his objectives but he has always
been deeply suspicious about transferring assets out of his own
Khalid is resident in Dubai and is married with one son, Amal, pockets and into the pockets of a distant trustee to manage on the
and two daughters, Yasmin and Nissa. Khalid is a successful basis of, what he considers to be, a rather flimsy agreement.
businessman, having established a manufacturing business and He has also had several discussions about being his own trustee
is interested in establishing a structure to protect his wealth and by using a PTC but it seems that this is ultimately controlled by a
ensure that the business passes to his children successfully.
foreign trustee and he cannot get comfortable with this.
Khalid has concerns over his son Amal who, despite attending a
He has spoken to friends in the Majilis who have mentioned foundations.
prestigious university in London, has shunned the family business.
The possibility of using a foundation instead of a PTC to act as the trustee
Except to demand money, Amal has had little contact with his of the discretionary trusts, which hold his business and his properties, has
parents since he married his wife in 2008, due to their belief that found favour with Khalid. A foundation is a legal entity and so can act as
his wife’s only interest in Amal is for the family’s money. In recent trustee of the discretionary trusts but, more importantly, as it is an orphan
years Amal’s spending habits have increased to an unhealthy level. vehicle it does not have any shareholders. The foundation council, who are
Khalid is worried about how quickly Amal and his spendthrift wife responsible for the management of the foundation, can mirror the board
would dissipate a lump sum of inheritance.
of directors of Khalid’s business, ensuring there is no effect on the control
In contrast, Yasmin is a highly successful businesswoman of Khalid’s business. He has, however, decided to have a professional
who, having excelled at a prestigious university in London, has TSP on the council as well in order to ensure that the foundation runs in
since worked for her father in the family business where she has accordance with Guernsey law.
recently been promoted onto the board. Khalid wants to ensure
Khalid will act as founder and reserve the power to amend, vary or
that Yasmin is appropriately rewarded for her contribution to the terminate the foundation, and he has appointed his right hand man
to act as guardian. Amal’s wife has been excluded from the underlying
Sadly, Nissa was involved in a car accident several years ago suffering trusts and Yasmin must sign a pre-nup before benefitting.
from severe brain damage and is entirely reliant upon her parents.
Importantly, the foundation meets Khalid’s key objectives; (i) Sharia
Khalid is very keen to ensure that she is provided for in the future.
law will be circumvented due to the robust anti forced heirship regime
Khalid wants to protect his wealth and transmit the family in Guernsey; (ii) control of the family business will be unaffected as
business to the next generation and future generations but, under the foundation council effectively mirrors the board of directors of the
Sharia law, Amal would inherit the lion’s share and this does not business; and (iii) as the foundation is an orphan vehicle there are no
fit with Khalid’s wishes. Khalid has spoken to several lawyers and shares to be caught by succession regimes.
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Slices of Pie January 2010 This is an e-mail newsletter about Pie in a Cup members and the events they’re involved in. Have news to share with your Pie in a Cup friends? Please send information and updates to Blake Leland at <mailto:[email protected]>[email protected] Our e-mail newsletter is sent out at the beginning of each month, so please sen